Allowing for Exceptions: A Theory of Defences and Defeasibility in Law by Luís Duarte d'Almeida

Author:Luís Duarte d'Almeida
Language: eng
Format: epub
Published: 2015-09-17T16:00:00+00:00

In contrast to Situation 2, in which the one admissible exception could be identified in advance, in Situation 3the decision-maker is authorized to decide by herself—‘at the moment of application’—whether any given circumstance is to be admitted as an exception in the case at hand. In Situation 3, then, we come across the phenomenon of implicit exceptions.

Now, if and when the porter does decide to classify some particular fact as an exception, the same question can be asked that was raised (p.149) about the explicit exception in Situation 2. If the porter recognizes some fact as an exception, she recognizes it as an exception to something. To what, exactly? The answer is the same as inSituation 2. She recognizes it as an exception to the relevant rule—in the sense of what I called a ‘ruleD’.

Indeed, in order to meaningfully contrast Situations 2 and 3 in terms of the distinction between explicit and implicit exceptions—by saying, as is usually said, that a ‘closed’ list of exceptions can be specified ‘in advance’ in the former case, but not in the latter—we must mean the same thing by an ‘exception’ in both cases. (Nor would the ‘explicit’/‘implicit’ classification be intelligible otherwise: ‘explicit’ and ‘implicit’ exceptions are ‘exceptions’ in the same sense of the term.) So Table 1 shows how such a contrast might be displayed if we were to restrict ourselves to what we are able to say ‘in advance of application’:

Table 1

RuleD

Exceptions to the ruleD

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