What, if any, is the distinction between offences and exculpatory defences, between definitional elements and defence elements, between rules and exceptions? In recent years the courts have shown a tendency to attach legal importance to this distinction, even as a matter of substantive law. But ought it to have this importance, and anyway is it usable?

On their face, exculpatory defences often relate to the same kind of question as the inculpation provisions of the criminal law. The offence-creating provision states what must or must not, in general, be done; the exculpatory provision states the limits of the prohibition in particular circumstances. As Professor Paul Robinson expresses it, in a long and learned article on defences, defences ‘refine the wording of the offence’; they ‘provide a more sophisticated account, when needed, of the harm or evil sought to be prohibited’. But the refinements may be expressed in the provision itself, as well as in the defences.

Legal scholars over the last 25 years or so have experienced a growing sense of dissatisfaction with the traditional classifications that segment university curricula and legal textbooks. Contract and tort, for instance, are felt to be not so different after all. The intimate historical links between the tort of negligence and the action of assumpsit may be seen as reflecting the realitics more truly than the later doctrinal separation of voluntarily and involuntarily incurred obligations. The growing impact of public law on the exercise of privatc rights, and the interweaving of public and private law that runs through an evcn greater portion of the legal system, cause still more fundamental doubts.

‘Legal reasoning’ and its character have been under discussion for some time: the character, that is, of the reasoning which judges, advocates, solicitors, and others engaged in matters of legal practice and decision must pursue if their conclusions are to claim validity. Do they – or should they – reason on lines dictated by the laws of formal logic, i.e. deductively in the strict sense of that term? Or must we say that judges, and lawyers in general, cannot reach or justify conclusions on deductive lines, and that in fact – and quite legitimately – they use, in establishing and justifying conclusions, a mode of reasoning which is not deductive but has a quite different determinate character of its own? If so, what is that determinate character? Does it provide criteria whereby we may appriase legal argumentation in particular instances as valid or invalid or, at least, as rational or failing in rationality?

Both Dr Wilson and Dr Patricia White in another review have made sound and telling criticisms of my efforts in Chapter 2 of Legal Reasoning and Legal Theory at translating legal argument into the technical forms of logic. At the time of writing the book, I was apprehensive about the likely resistance at least of lawyers and law-students to any excessive resort to technicalities of symbolism; it therefore seemed wise to simplify matters by ignoring differenees between propositional logic and the logic of predicates and of relations, thc latter being at least ostensibly the more complex and difficult, albeit more rigorously fitted to the subject matter. I hoped that my perhaps unduly cryptic footnote 5 on page 28 (noted by Dr Wilson at her footnote 29) was a sufficient acknowledgment of the technical difficulties which I was thus sweeping under the carpet. Like Dr White, but unlike Dr Wilson, I took the view that my main point about the deductive character of the arguments I had in view was unaffected by the technical infelicity from a logician's point of view of my resort to the symbolic forms of propositional logic.

In this article I hope to be able to demolish a number of false assumptions that are to be found in textbooks on Criminal Law. These are the assumption that intoxication (whether voluntary or involuntary) is a ‘defence’; the assumption that, when D raises in evidence that he was intoxicated, special rules come into play; and the assumption that there is a difference between the legal effect of voluntary and involuntary intoxication. Whereas these assumptions may have been justified in the nineteenth century or even a few years ago, it will be shown that recent cases have tended more and more to assimilate the rules on intoxication to the general law, so that by now the differences have virtually vanished. If this is so, it might even be possible to eliminate a chapter from future editions of Criminal Law textbooks, and to save students a very troublesome week of study.

Where a contract of employment is brought to an end during, rather than at the end of, a working period, the question arises of the employee's right to be paid for the part-period worked. If the termination has come about because of the employer's breach of contract, it is not difficult to see that the employee will at least have a claim for damages for breach, which must take into account what the employee has lost by not being allowed to work up to the end of the period in question.