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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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.

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