By Luis Duarte d'Almeida
You end up in a court docket of legislation, accused of getting hit somebody. What are you able to do to prevent conviction? you may easily deny the accusation: 'No, i did not do it'. yet believe you probably did do it. you could then provide a distinct solution. 'Yes, I hit him', you furnish, 'but it was once self-defence'; or 'Yes, yet i used to be performing lower than duress'. to reply to during this way-to supply a 'Yes, yet. . .' reply-is to carry that your specific unsuitable was once devoted in unparalleled conditions. possibly it really is actual that, in general, wrongdoers should be convicted. yet on your case the courtroom may still set the guideline apart. you need to be acquitted.
Within limits, the legislations enables exceptions. Or so we have a tendency to imagine. actually, the road among principles and exceptions is more durable to attract than it kind of feels. How are we to figure out what counts as an exception and what as a part of the correct rule? the excellence has vital useful implications. yet felony theorists have came upon the inspiration of an exception unusually tricky to provide an explanation for. this can be the longstanding jurisprudential challenge that this e-book seeks to solve.
The publication is split into 3 components. half I, Defeasibility in Question, introduces the subject and articulates the center puzzle of defeasibility in legislations. half II, Defeasibility in Theory, develops a finished proof-based account of felony exceptions. half III, Defeasibility in Action, appears to be like extra heavily into the workings of exceptions in accusatory contexts, together with the legal trial.
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Extra info for Allowing for exceptions: a theory of defences and defeasibility in law
Dn happens to be ‘positively’ defined). 33 He must deny that D-facts can adequately be accounted for in terms of—that D-facts can be explanatorily reduced to— necessary conditions, either positive or negative, of correct judicial decisions. 34 I will call it the irreducibility thesis: (T3) Defeating circumstances are not reducible to necessary conditions of correct judgments. 4 Two Questions Two questions can now be taken up for discussion. The first is whether (T3), the irreducibility thesis, is right.
Notice, moreover, that no mention of open-endedness is made in connection with his discussion of the defeasibility of ‘the concept of a human action’: unlike defeasibility, open-endedness is presented as a specifically legal topic connected with some features of judicial decision-making: see Hart (1949: 173). It is only in The Concept of Law—a book in which his main 1949 theses are no longer defended—that Hart specifically addresses the different issue of exceptions ‘not exhaustively specifiable in advance’: see Hart (1961/2012: 139).
23 Hart (1949: 173–5, 178). 24 Hart (1949: 182). 25 Emphasis added; see Hart (1949: 174–5, 182). 26 He describes the plaintiff ’s claim, for example, both as the claim that ‘there is a contract’ and as the claim that ‘there is a valid contract’: see Hart (1949: 175, 177). Defeasibility and Legal Concepts 37 whenever the relevant P-facts are present, whether or not any defeating circumstance also happens to be present. If we write this as ‘contractP’, then the claim made by the defendant who raises a defence is not that no contractP was concluded or ‘exists’.
Allowing for exceptions: a theory of defences and defeasibility in law by Luis Duarte d'Almeida