By Luis Duarte d'Almeida
You end up in a court docket of legislations, accused of getting hit somebody. What are you able to do to prevent conviction? you'll easily deny the accusation: 'No, i did not do it'. yet believe you probably did do it. you could then provide a special solution. 'Yes, I hit him', you supply, 'but it used to be self-defence'; or 'Yes, yet i used to be appearing less than duress'. to respond to during this way-to provide a 'Yes, yet. . .' reply-is to carry that your specific incorrect was once devoted in unprecedented conditions. probably it really is actual that, ordinarily, wrongdoers should be convicted. yet on your case the courtroom may still set the rule of thumb apart. you have to be acquitted.
Within limits, the legislation allows exceptions. Or so we have a tendency to imagine. actually, the road among principles and exceptions is tougher to attract than it kind of feels. How are we to figure out what counts as an exception and what as a part of the correct rule? the excellence has vital functional implications. yet criminal theorists have chanced on the idea of an exception unusually tricky to give an explanation for. this is often the longstanding jurisprudential challenge that this e-book seeks to solve.
The ebook is split into 3 components. half I, Defeasibility in Question, introduces the subject and articulates the middle puzzle of defeasibility in legislation. half II, Defeasibility in Theory, develops a complete proof-based account of criminal exceptions. half III, Defeasibility in Action, appears extra heavily into the workings of exceptions in accusatory contexts, together with the legal trial.
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Additional info for Allowing for exceptions: a theory of defences and defeasibility in law
It is only on the diachronic assumption that at T2 we are still concerned with the very same object as at T1, and that we are concerned with it for the same reason or purpose, that in a different (and looser) sense of the term we may also say, as Hart does, that our initial judgment ‘no longer remains’ correct. We stay open to replacing it with a different judgment. Our initial judgment is not, as Hart says, a final one. Both in the legal domain and in the non-institutional domain of decisions made in private life, our judgments may and often do remain open to reassessment in this sense.
18 Hart (1949: 175). 32 The Issue of Defeasibility ‘defeasibleP’, I shall from now on employ the bare terms to refer to the sort of judgments that, as I have argued, form the actual object of our theoretical interest. 2 Defences and Exceptions ‘Defence’, too, is for more than one reason a misleading term to employ in connection with defeating circumstances. It is a multiply ambiguous term. First, it is sometimes used, particularly in the legal domain, with a wider scope than usual: it is used as a general label applying to any circumstance whose verification enables a defendant to oppose a claim or accusation, securing a favourable decision.
We may thus say that a token of ‘Smith hit her’ is a correct judgment at T1, though not at T2; and that at T2 the appropriate judgment to make would instead be a token of ‘Smith hit her in self-defence’. Hart says that the judgment made at T1 will have to be qualified at T2 in view of the new, expanded body of information. This is not quite right. It suggests that at T2 that first judgment will somehow become an incorrectly made one. In fact we have two distinct judgments, both correct relative to the moment at which they are made and the information then available.