Allowing for exceptions: a theory of defences and by Luis Duarte d'Almeida

By Luis Duarte d'Almeida

You end up in a courtroom of legislations, accused of getting hit anyone. What are you able to do to prevent conviction? you may easily deny the accusation: 'No, i did not do it'. yet feel you probably did do it. you'll then provide a distinct resolution. 'Yes, I hit him', you furnish, 'but it used to be self-defence'; or 'Yes, yet i used to be appearing less than duress'. to respond to during this way-to supply a 'Yes, yet. . .' reply-is to carry that your specific fallacious used to be devoted in unheard of conditions. possibly it's actual that, ordinarily, wrongdoers needs to be convicted. yet on your case the court docket should still set the rule of thumb apart. you need to be acquitted.

Within limits, the legislation allows exceptions. Or so we have a tendency to imagine. actually, the road among ideas 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 proper rule? the excellence has vital useful implications. yet criminal theorists have discovered the inspiration of an exception strangely tough to give an explanation for. this can be the longstanding jurisprudential challenge that this e-book seeks to solve.

The booklet is split into 3 components. half I, Defeasibility in Question, introduces the subject and articulates the middle puzzle of defeasibility in legislation. half II, Defeasibility in Theory, develops a finished proof-based account of felony exceptions. half III, Defeasibility in Action, seems extra heavily into the workings of exceptions in accusatory contexts, together with the felony trial.

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4 It seems, then, that a defeasible judgment is a non-final one, a judgment vulnerable to challenge or impugnation. Can this notion be articulated in more detail? Hart’s example incorporates a chronological element. There is an initial point in time at which, on the grounds of ‘merely the physical facts’ observed, we judge that ‘Smith hit her’. 5 So with this chronological element in mind, let me suggest a simple scheme of analysis that will help to clarify several points that Hart’s cursory account of this and other examples does not fully capture.

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’. 27 But if one chooses instead to refer to those P-facts as elements that are sufficient for a contract to ‘exist’ only if no defences emerge, one will then be using ‘contract’ to mean that there is a valid contractP. This can be marked out as ‘contractV’. In so far as Hart holds that defeasibility affects the meaning of (particular interpretations of ) ‘contract’, then he is not concerned with the meaning of interpretations of ‘contract’ in the context and for the purposes of some particular decision.

But I don’t want to get ahead of myself. Before we can assess whether (T1), in particular, is right or wrong, we need to acquire a sounder grasp of the claim it purports to convey—and indeed a clearer picture of the problem of defeasibility in law. That is the purpose of Chapter 2. Hart (1949: 181). Hart (1949: 174). 1 Two Notions of Defeasibility Two notions of defeasibility are often confused. One tracks the non-final character of some of our decisions and judgments. The other regards the relation between the presence or absence of defeating circumstances and the correctness of certain (final or non-final) decisions and judgments.

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