The syntax of legal exceptions: how the absence of proof is a proof of absence thereof

Kotsoglou, Kyriakos (2017) The syntax of legal exceptions: how the absence of proof is a proof of absence thereof. Transnational Legal Theory, 8 (2). pp. 119-145. ISSN 2041-4005

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Official URL: https://doi.org/10.1080/20414005.2017.1283567

Abstract

In this review article of Duarte d’Almeida (Allowing for Exceptions: A Theory of Defences and Defeasibility in Law, Oxford: Oxford University Press, 2015), I am going to survey and criticise the concept, philosophical background and legal applications of defeasibility and legal exceptions in law. Through critical engagement with Duarte d’Almeida’s methodological assumptions and theoretical presuppositions, I shall identify a series of pressure points in the book’s central claims and theses about the theoretical status of legal exceptions (defeaters). First, I will facilitate a proper understanding of HLA Hart’s conceptual apparatus by pointing out its roots in the Oxford Ordinary Language Philosophy. Second, I will read Duarte d’Almeida’s monograph against this background and facilitate a better understanding of the syntax of defeaters, Hart’s original topic. Third, I will show that defeaters in criminal adjudication are part and parcel of a justificatory structure, whose main feature is the defeasibility of the respective exceptions.

Item Type: Article
Uncontrolled Keywords: Legal exceptions; defeasibility; Duarte d’Almeida; Hart; criminal law
Subjects: M200 Law by Topic
Department: Faculties > Business and Law > Northumbria Law School
Depositing User: Elena Carlaw
Date Deposited: 19 Sep 2019 13:00
Last Modified: 10 Oct 2019 14:31
URI: http://nrl.northumbria.ac.uk/id/eprint/40760

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