Allowing for exceptions a theory of defences and defeasibility in law 1st Edition by Luis Duarte Almeida 9780191508998 0191508993

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ISBN 10: 0191508993
ISBN 13: 9780191508998 
Author: Luis Duarte Almeida 

You find yourself in a court of law, accused of having hit someone. What can you do to avoid conviction? You could simply deny the accusation: ‘No, I didn’t do it’. But suppose you did do it. You may then give a different answer. ‘Yes, I hit him’, you grant, ‘but it was self-defence’; or ‘Yes, but I was acting under duress’. To answer in this way-to offer a ‘Yes, but. . .’ reply-is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. Or so we tend to think. In fact, the line between rules and exceptions is harder to draw than it seems. How are we to determine what counts as an exception and what as part of the relevant rule? The distinction has important practical implications. But legal theorists have found the notion of an exception surprisingly difficult to explain. This is the longstanding jurisprudential problem that this book seeks to solve. The book is divided into three parts. Part I, Defeasibility in Question, introduces the topic and articulates the core puzzle of defeasibility in law. Part II, Defeasibility in Theory, develops a comprehensive proof-based account of legal exceptions. Part III, Defeasibility in Action, looks more closely into the workings of exceptions in accusatory contexts, including the criminal trial.

Allowing for exceptions a theory of defences and defeasibility in law 1st Table of contents:

Part I. Defeasibility in Question

1. The Irreducibility Thesis
1.1 Introduction
1.2 Hart on Defeasible Concepts
1.3 The Irreducibility Thesis
1.4 Two Questions

2. The Issue of Defeasibility
2.1 Two Notions of Defeasibility
2.2 Defences and Exceptions
2.3 Defeasibility and the Application of Legal Concepts
2.4 Agenda

Part II. Defeasibility in Theory
3. The Proof-Based Account
3.1 Preliminaries
3.2 Introducing the Proof-Based Account
3.3 Substantive Representations of Exceptions
3.4 ‘Probanda’ and ‘Non-Refutanda’
3.5 First Conclusions
3.6 Refinements

4. Exceptions and the Burden of Proof
4.1 Three Objections
4.2 The Burden of Proof: Problems with the Received View
4.3 Making Better Sense of the Notion
4.4 Defences, ‘Proof’, and Evidential Burdens
4.5 Developing the Analysis
4.6 The ‘Logic’ of Exceptions

5. Implicit Exceptions
5.1 The Problem
5.2 The Common View
5.3 Two Senses of ‘Rules’
5.4 The Common View Dismissed

6. Ceteris Ignotis Clauses
6.1 Completing the Proof-Based Account
6.2 On Overrides
6.3 On ‘That’s it’ Clauses
6.4 Concluding Remarks

Part III. Defeasibility in Action

7. Actions and Accusations
7.1 Introduction
7.2 Responsibility and Action
7.3 ‘Yes, but…’
7.4 Defeasibility in Accusatory Contexts
7.5 Lines of Development

8. Criminal Answerability and the Offence/Defence Distinction
8.1 Criminal Defences in the German Model
8.2 Offences and Crimes
8.3 Defences, Convictions, and Accusations
8.4 ‘O Call Me Not to Justify the Wrong’
8.5 Prima Facie Wrongs and Prima Facie Judgments
8.6 In Conclusion

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