In Tort Law as Much as in Criminal Law, Authors Tend to Speak Simply of “Defenses”, without Any Further Distinction. See, as to Tort Law e.g. Rogers, W.V.H. (2010) Winfield and Jolowicz on Tort. 18th Edition, Sweet & Maxwell, London, para 25-1; McBride N. and Bagshaw, R. (2005) Tort Law. 2nd Edition, Pearson-Longman, London, Devote a Special Chapter in Each Tort to “Lawful Justification or Excuse”, That Is, without Distinguishing Justification and Excuse. A Good Part of Them Even Includes the Contributory Negligence among the Defenses, and, besides, as a Defense inside Negligence. So, Deakin, S., Johnston, A. and Marquesinis, B. (2008), Markesinis and Deakin’s Tort Law. 6th Edition, OUP, Oxford, 892 ff.; Dobbs, D. (note 57), 494 ff.; Lunney, M. and Oliphant, K. (2010) Tort Law. Texts and Materials. 4th Edition, OUP, Oxford, 300 ff.; Weir, T. (2002) Tort Law. OUP, Oxford, 119: “Contributory Negligence Is Unquestionably a Defense”. But, on the One Hand, Contributory Negligence Has Nothing in Common with, Say, Insanity, and, on the Other Hand, Negligence Means per se Unlawfulness. One Thing Is Unlawfulness and Other Liability; in Case of Contributory Negligence, the Negligence of the Tortfeasor Does Not Decrease the Disvalue of the Conduct or State of Mind, But Only the Liability: Münzberg, W. (note 5), 81, fn. 161.
As to Criminal Law, e.g. Asworth, A. (2003) Principles of Criminal Law, OUP, Oxford, 204 ff.; Ormerod, D. (2005). Smith & Hogan Criminal Law. 11th Edition, OUP, Oxford, 296 ff.
Exceptions to What Has Been Exposed Are, as to Tort Law, e.g. Dobbs, D. (note 57), 156 f. As to Criminal Law, W.R. LaFave, W.R. (2003) Criminal Law. 4th Edition, § 9.1, 447 ff.; Although Recognizing That “The Actual or Proposed Defenses in the Present Chapter Are More of a MIXED bag” (450).

has been cited by the following article:

• TITLE: Unlawfulness in Western European Tort Law

  AUTHORS: Martín García-Ripoll

  KEYWORDS: Tort Law, Unlawfulness, Wrongfulness, Fault, Liability of Minors and Mentally Ill Persons

  JOURNAL NAME: Open Access Library Journal, Vol.2 No.6, June 15, 2015

  ABSTRACT: In the wake of the German Civil Code (BGB), the codes of different countries of Western Europe include an apparently distorting requisite for an action in tort, which is the unlawfulness. This paper aims to clarify its original meaning and the possibilities of accepting it in jurisdictions where its law does not require expressly that element, including those of Common Law. Before moving directly into the problem, a clarification seems necessary for Common Law scholars, for this paper is focused on a scientific European issue. In Common Law, it is debatable whether there is a general tort law or different torts, but no matter the opinion of the different authors is , each tort is supposed to have its own requisites. In contrast, in Continental Law, the trend is to establish common requisites for all torts (although it is distinguished between “normal” and strict liability), and to insert subsequently nuances when dealing with special group of cases. This paper deals with one of these general elements of an action in tort in some codified systems: the unlawfulness, but without rejecting its usefulness in Common Law jurisdictions.