Allowing for exceptions : a theory of defences and defeasibility in law / Luís Duarte d'Almeida.

Format:

Book

Author/Creator:

Duarte d'Almeida, Luís, 1976-

Series:

Oxford legal philosophy

Language:

English

Subjects (All):

Exceptions (Law).

Defense (Criminal procedure).

Physical Description:

xii, 291 pages ; 24 cm.

Edition:

First edition.

Place of Publication:

Oxford : Oxford University Press, 2015.

Summary:

Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It com missions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence. Book jacket.

Contents:

Part I Defeasibility in Question 1

1 The Irreducibility Thesis 3

1.1 Introduction 3

1.2 Hart on Defeasible Concepts 8

1.3 The Irreducibility Thesis 13

1.4 Two Questions 17

2 The Issue of Defeasibility 23

2.1 Two Notions of Defeasibility 23

2.2 Defences and Exceptions 32

2.3 Defeasibility and the Application of Legal Concepts 34

2.4 Agenda 45

Part II Defeasibility in Theory 47

3 The Proof-Based Account 49

3.1 Preliminaries 49

3.2 Introducing the Proof-Based Account 53

3.3 Substantive Representations of Exceptions 58

3.4 'Probanda' and 'Non-Refutanda' 65

3.5 First Conclusions 73

3.6 Refinements 77

4 Exceptions and the Burden of Proof 83

4.1 Three Objections 83

4.2 The Burden of Proof: Problems with the Received View 85

4.3 Making Better Sense of the Notion 89

4.4 Defences, 'Proof, and Evidential Burdens 94

4.5 Developing the Analysis 103

4.6 The 'Logic' of Exceptions 122

5 Implicit Exceptions 135

5.1 The Problem 135

5.2 The Common View 138

5.3 Two Senses of 'Rules' 143

5.4 The Common View Dismissed 151

6 Ceteris Ignotis Clauses 169

6.1 Completing the Proof-Based Account 169

6.2 On Overrides 179

6.3 On 'That's it' Clauses 181

6.4 Concluding Remarks 183

Part III Defeasibility in Action 185

7 Actions and Accusations 187

7.1 Introduction 187

7.2 Responsibility and Action 192

7.3 'Yes, but ...' 204

7.4 Defeasibility in Accusatory Contexts 209

7.5 Lines of Development 214

8 Criminal Answerability and the Offence/Defence Distinction 219

8.1 Criminal Defences in the German Model 219

8.2 Offences and Crimes 234

8.3 Defences, Convictions, and Accusations 239

8.4 'O Call Me Not to Justify the Wrong' 252

8.5 Prima Facie Wrongs and Prima Facie judgments 259

8.6 In Conclusion 266.

Notes:

Includes bibliographical references (pages [269]-287) and index.

ISBN:

9780199685783

0199685789

OCLC:

892888789