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114) This is not surprising, given the routine acknowledgment by members of the academy that provocation exhibits the appearance of both excusatory and justificatory elements.
385, 418 (2005) ("In sum, the partial defense of provocation includes elements of both excusatory and justificatory rationales.
See CYNTHIA LEE, MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL COURTROOM 227-28 (2003) (arguing that neither justification nor excuse alone can explain both the heat of passion and adequate provocation requirements); Bergelson, supra note 7, at 418 (asserting that "the partial defense of provocation includes elements of both excusatory and justificatory rationales").
38) But they need not have similarly stark notice of their possible justificatory and excusatory defenses.
An approach that focuses on minimising the chances of evidence being excluded is excusatory, and it would seem, in a qualified fashion, to condone deviance.
In an excusatory approach, the vulnerability remains that the ends may be seen to justify the means.
Thus, subject to the strategic and common goods limitations imposed by his sufficient conditions, Horder's proposal contemplates providing a "diminished capacity" plea (24) to some defendants who suffer from deficiencies that do not wholly undermine responsibility, when these defendants find themselves in circumstances that contain an incipient or incomplete excusatory factor.
In his consideration of all three of these excuses-short-comers, demands-of-conscience, and due diligence--Horder achieves his broader purpose of showing how a detailed and complex understanding of existing excuse practices supports the extension of available excusatory space, subject to the important limits imposed by his sufficient conditions.
It is excusatory in its focus on the accused's lack of self-control and justificatory in its focus on the provocative conduct of the victim and the acceptability of the accused's actions.
Hence theorists have striven to find a "third theory" capable of accommodating both provocation's excusatory element found in the fact that D was driven to act by great anger, and provocation's, justificatory element found in the fact that (inmost jurisdictions) this anger must have been sparked by grave provocation.
They set up what they take to be two extreme alternative explanations for the provocation defense (the impaired volition and proportionate response theories), and seek to show that these explanations cannot account for the excusatory basis of the defense.
My own view is that, depending on its definition, the provocation doctrine (like self-defense as shown by Uniacke and others) sometimes reflects justification theory while at other times operates as an excusatory claim.