Allowing for exceptions: a theory of defences and defeasibility in law

321 Pages·2015·2.53 MB·English

by  Duarte D'Almeida

OXFORD LEGAL PHILOSOPHY
Series Editors: Timothy Endicott, John Gardner, and Leslie Green
Allowing for Exceptions
OXFORD LEGAL PHILOSOPHY
Series Editors: Timothy Endicott, John Gardner, and Leslie Green
Oxford Legal Philosophy publishes the best new work in philosophically oriented
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Allowing for
Exceptions
A Theory of Defences and
Defeasibility in Law
Luís Duarte d’Almeida
1
1
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To my father, and to the memory of my mother

Series Editors’ Preface
Recent work in the philosophy of criminal law has given renewed
prominence to the distinction between offences and defences.
Unconvinced that this is merely a technical distinction drawn for the
purpose of allocating burdens of proof as between the parties to crim-
inal proceedings, several theorists have attempted to establish that the
distinction is rooted in the general theory of responsibility, and that it
has significance beyond the criminal law. In this fascinating work, Luís
Duarte d’Almeida joins those who deny that the distinction is merely
a technical one. He also agrees that it has a significance reaching well
beyond the criminal law, extending into the whole theory of rules
and exceptions in practical reasoning. But he argues that all this is
nonetheless compatible with an understanding of the distinction that
ties it very closely to the theory of proof.
The first moves of Duarte d’Almeida’s book lay the foundation
for these claims by retrieving some ideas from H.L.A. Hart’s early
(and later disowned) arguments about the role of defences in law and
morality. Duarte d’Almeida’s sophisticated reworking of these ideas
provides the groundwork for his original account of the more general
distinction between rules and exceptions. He shows how this view
casts new light on several issues and problems, including the notion of
the burden of proof and the distinction between offences and defences
in criminal law.
Luís Duarte d’Almeida thus reconnects the local concerns of
criminal law theory and the theory of legal proof with wider prob-
lems in philosophy of law. He also speaks to lawyers. The book is
viii Series Editors’ Preface
highly original and highly critical of some prevailing dogmas, yet
it also reminds us that sometimes the traditional legal analysis of a
problem can give the best clues in the search for a philosophical
understanding.
T. A.O. Endicott
J. Gardner
L. Green
Acknowledgments
My greatest debt of gratitude in writing this book is to John Gardner,
who supervised the D.Phil. thesis out of which the book has grown.
Generous and stimulating guidance is only one among the many
things for which I thank him. I am also very grateful to many friends
and colleagues for helpful comments and discussions. José de Sousa
e Brito has been a gentle teacher and a patient critic. Pedro Múrias,
who read many versions of several chapters, and Benjamin Spagnolo,
who read at least one version of each chapter, both gave me extensive
remarks and corrections. At different stages I profited from exchanges
with Eugenio Bulygin, Andrea Dolcetti, James Edwards, Sebastián
Figueroa, Leslie Green, Matthew Grellette, Daniël Hogers, José Juan
Moreso, Nicola Muffato, Maribel Narváez Mora, Diego Papayannis,
Frederick Schauer, Fábio Shecaira, Richard H. S. Tur, José António
Veloso, Fred Wilmot-Smith, and Hugo R. Zuleta; and the final draft
was greatly improved by Alex Flach’s expert suggestions. I am equally
grateful to Antony Duff and Timothy Endicott, my doctoral exam-
iners, for instructive feedback on the original thesis; to audiences in
Barcelona, Bahía Blanca, Belo Horizonte, Buenos Aires, Cambridge,
Frankfurt, Girona, Lisbon, Milan, Oxford, and Hamilton, Ontario,
where versions of several chapters were presented over the past few
years; and to Celia Davis for excellent research assistance. And I am
especially beholden to the Edinburgh Legal Theory Group for organ-
izing, and to the Edinburgh School of Law for supporting, a one-
day workshop on the penultimate version of the typescript. Many
thanks to all who participated, and especially to Andrew Cornford,
James Edwards (again), Guy Fletcher, Martin Kelly, Alex Latham, Euan