Einführung

Häcker, Hartmut

doi:10.1007/978-3-642-53825-4_1

Cited by 2 publications

(1 citation statement)

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“…The necessity of judgement is present even if we have the illusion that we 'automatically' apply the law to facts, since non-standard cases will perforce arise. 72 Since legal rulesno matter how precise-are intimately bound up with facts, and facts are infinitely variable, we will unavoidably end up being entangled in the unpredictability of 'our own rules', 73 always in need of a decision, even in cases of rules including 'explicitly formulated catalogue of admissible exceptions' (135). 74 For the legal evidence in question or the conceptual/doctrinal logical framework cannot speak up and say 'I am a legal exception for the purposes of this rule'.…”

Section: G On Explicit and Implicit Exceptionsmentioning

confidence: 99%

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

Kotsoglou

2017

Transnational Legal Theory

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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.

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Section: G On Explicit and Implicit Exceptionsmentioning

confidence: 99%