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. pp. 119-145. ISSN ISSN: 2041-4005

Text (The Syntax of Legal Exceptions How the Absence of Proof Is a Proof of Absence Thereof) TLT Kotsoglou.docx - Accepted Version Download (145kB)

Abstract

In this review article of Duarte d’Almeida (Allowing for Exceptions: A Theory of Defences and Defeasibility in Law. 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
Additional Information and Comments:	This is an Accepted Manuscript of an article published by Taylor & Francis in Transnational Legal Theory in January 2017, available online: http://www.tandfonline.com/doi/full/10.1080/20414005.2017.1283567
Faculty / Department:	Faculty of Business, Law and Criminology > School of Law and Criminology
Depositing User:	Kyriakos Kotsoglou
Date Deposited:	24 Jan 2018 09:27
Last Modified:	24 Jan 2018 09:27
URI:	https://hira.hope.ac.uk/id/eprint/2188

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