Reader in Jurisprudence
(Currently on sabbatical 2016/2017)


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Courses Taught

Reasoning with Precedent (LLM) (Course Organiser)

Critical Legal Thinking (Ordinary) (Course Organiser)

The Practice of Legal Argument (Honours) (Course Organiser)

PhD Supervisees

Martin Kelly  'Re-gilding the 'Golden' Rule of Legal Construction'

Lucas Miotto Lopes  'Coercion and the Nature of Law'

Books and Reports

Luis Duarte D'Almeida, Allowing for Exceptions: A Theory of Defences and Defeasibility in Law, (Oxford University Press, 2015)
Abstract: You find yourself in a court of law, accused of having hit someone. What can you do to avoid conviction? You could simply deny the accusation: 'No, I didn't do it'. But suppose you did do it. You may then give a different answer. 'Yes, I hit him', you grant, 'but it was self-defence'; or 'Yes, but I was acting under duress'. To answer in this way-to offer a 'Yes, but. . .' reply-is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted.Within limits, the law allows for exceptions. Or so we tend to think. In fact, the line between rules and exceptions is harder to draw than it seems. How are we to determine what counts as an exception and what as part of the relevant rule? The distinction has important practical implications. But legal theorists have found the notion of an exception surprisingly difficult to explain. This is the longstanding jurisprudential problem that this book seeks to solve.The book is divided into three parts. Part I, Defeasibility in Question, introduces the topic and articulates the core puzzle of defeasibility in law. Part II, Defeasibility in Theory, develops a comprehensive proof-based account of legal exceptions. Part III, Defeasibility in Action, looks more closely into the workings of exceptions in accusatory contexts, including the criminal trial.

Luis Duarte D'Almeida, John Gardner, Leslie Green, Kelsen Revisited: New Essays on the Pure Theory of Law, (Hart Publishing, 2013)
Abstract: Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

Articles

Luis Duarte D'Almeida, 'Fundamental legal concepts: The Hohfeldian framework', (2016), Philosophy Compass, Vol 11, pp 554-569
Abstract: Wesley Newcomb Hohfeld’s account of legal rights is now 100 years old. It has been much discussed, and remains very influential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition (with some revisions) of Hohfeld’s framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld’s most important distinction.

Luis Duarte D'Almeida, Claudio Michelon, 'The structure of arguments by analogy in Law ', (2016), Argumentation
Abstract: Successful accounts of analogy in law have two burdens to discharge. First, they must reflect the fact that the conclusion of an argument by analogy is a normative claim about how to decide a certain case (the target case). Second, they must not fail to accord relevance to the fact that the source case was authoritatively decided in a certain way. We argue in the first half of this paper (Sections 2 to 4) that the common view of the structure of analogical arguments in law cannot overcome these hurdles. In the second half (Sections 5 to 7) we develop an original account that aims to succeed where others failed.

Luis Duarte D'Almeida, Euan MacDonald, 'Denying the Antecedent: The Fallacy that Never Was, or Sometimes Isn't? ', (2016), Informal Logic, Vol 36, pp 26-63
Abstract: In this paper we examine two challenges to the orthodox understanding of the fallacy of denying the antecedent. One challenge is to say that passages thought to express the fallacy can usually be given an interpretation on which they express valid arguments, entitling us to query whether the fallacy is commonly, if ever, committed at all. We discuss this claim in Section 1. The second challenge comes from those who think that there are legitimate uses of denying the antecedent that have traditionally been overlooked. In Section 2 we propose a general test for claims of this sort, and assess three versions of this view.

Luis Duarte D'Almeida, 'Substantive Norms and Substantive Questions ', (2014), Analisi e Diritto, pp 11-27

Luis Duarte D'Almeida, 'A Proof-Based Account of Legal Exceptions ', (2013), Oxford Journal of Legal Studies, Vol 33, pp 133-68
Abstract: I propose and defend a proof-based account of legal exceptions. The basic thought is that the characteristic behaviour of exceptions is to be explained in terms of the distinction, relative to some given decision-type C in some decision-making context, between two classes of relevant facts: those that may, and those that may not, remain uncertain if a token decision C is to count as correctly made. The former is the class of exceptions. A fact F is an exception relative to some decision-type C, I claim, if (i) the ascertainment of F is sufficient for a token decision C not to count as correctly made, and (ii) the ascertainment of the negation of F is not necessary for a token decision C to count as correctly made. I also recuperate, reconstruct and discuss some of HLA Hart’s early views on defeasible judicial decisions. These two projects are closely connected: the latter is a vehicle for the former.

Luis Duarte D'Almeida, '"O Call Me Not to Justify the Wrong": Criminal Answerability and the Offence/Defence Distinction', (2012), Criminal Law and Philosophy, Vol 6, pp 227-45
Abstract: Most philosophers of criminal law agree that between criminal offences and defences there is a significant, substantial difference. It is a difference, however, that has proved hard to pin down. In recent work, Duff and others have suggested that it mirrors the distinction between criminal answerability and liability to criminal punishment. Offence definitions, says Duff, are—and ought to be—those action-types ‘for which a defendant can properly be called to answer in a criminal court, on pain of conviction and condemnation if she cannot offer an exculpatory answer’; and defences are ‘exculpatory answers’ that ‘block the transition from responsibility to liability’. I criticise this answerability-based account of the offence/defence divide. It is descriptively false, I claim, as well as normatively unappealing.

Luis Duarte D'Almeida, 'Legal Statements and Normative Language ', (2011), Law and Philosophy, Vol 30, pp 167-199
Abstract: Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one.

Luis Duarte D'Almeida, 'Description, Ascription, and Action in the Criminal Law ', (2007), Ratio Juris, Vol 20, pp 170-95
Abstract: My main purpose is to suggest that H. L. A. Hart's infamous “ascriptivism” may be of considerable pertinence to the assessment of the nature of justificatory claims in the criminal law; in passing, I argue that ascriptivism gives no cause for infamy. My suggestion is developed in Part III: As it depends on some reformulation and endorsement of Hart's ideas, I discuss the “ascriptive” and “defeasible” character of the concept of action in Part II, and therein try to dismiss some of the severe criticism that ascriptivism has given rise to since its proposal. This criticism, I shall argue, often relies upon a poor or uncharitable interpretation of Hart's instrumental characterization of the “defeasibility” of legal concepts; for this reason, Part I is dedicated to a reconstructive elucidation of Hart's account of “conceptual defeasibility.”

Chapters

Luis Duarte D'Almeida, 'The Grounds of Law ' in Wil Waluchow, Stefan Sciaraffa (ed.) The Legacy of Ronald Dworkin (Oxford University Press 2016) 165-202
Abstract: I discuss two versions of Ronald Dworkin’s objection from theoretical agreement. The first version targets what Dworkin calls the “plain fact” view of the grounds of law. Dworkin’s argument is sound; but the plain fact view, which Dworkin misattributes to H.L.A. Hart, is a straw man. Indeed, Dworkin’s argument relies on a distinction that Hart pioneered and the plain fact view rejects: the distinction between internal, normative statements of law and external, factual statements about law. That is the claim in Section 1. In Sections 2 and 3, I discuss a more familiar version of Dworkin’s objection—a version that has been revived in recent literature. This version, too, derives its strength from charging legal positivists with the failure to distinguish between external and internal statements. Unfortunately, many theorists today are guilty as charged.

Luis Duarte d'Almeida, 'Defining "Defences" ' in Andrew Dyson, James Goudkamp, Fred Wilmot-Smith (ed.) Defences in Tort (Hart Publishing 2015) 35-52

Luis Duarte D'Almeida, 'Legal Sex ' in Leslie Green, Brian Leiter (ed.) Oxford Studies in Philosophy of Law (Oxford University Press 2013) 277-

Luis Duarte D'Almeida, 'In Canonical Form Kelsen's Doctrine of the 'Complete' Legal Norm' in Luis Duarte d'Almeida, John Gardner, Leslie Green (ed.) Kelsen Revisited (Hart Publishing 2013) 259-82

Luis Duarte D'Almeida, James Edwards, Andrea Dolcetti, 'Hart's Readers ' in James Edwards, Andrea Dolcetti, Luis Duarte D'Almeida (ed.) Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013)

Luis Duarte D'Almeida, 'Against "Prohibitions" (First Round) ' in Carlo Penco, Massimiliano Vignolo, Valeria Ottonelli, Cristina Amoretti (ed.) Proceedings of the 4th Latin Meeting in Analytic Philosophy (CEUR-WS.org 2007) 11-32

Working Papers

Luis Duarte D'Almeida, 'Legal Statements and Normative Language ' 2013
Abstract: Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one.

Luis Duarte D'Almeida, 'Description, Ascription, and Action in the Criminal Law ' 2007
Abstract: My main purpose is to suggest that H. L. A. Hart's infamous "ascriptivism" may be of considerable pertinence to the assessment of the nature of justificatory claims in the criminal law; in passing, I argue that ascriptivism gives no cause for infamy. My suggestion is developed in Part III: As it depends on some reformulation and endorsement of Hart's ideas, I discuss the "ascriptive" and "defeasible" character of the concept of action in Part II, and therein try to dismiss some of the severe criticism that ascriptivism has given rise to since its proposal. This criticism, I shall argue, often relies upon a poor or uncharitable interpretation of Hart's instrumental characterization of the defeasibility of legal concepts; for this reason, Part I is dedicated to a reconstructive elucidation of Hart's account of "conceptual defeasibility".

Conference Papers

Luis Duarte D'Almeida, 'Legal Proof and Legal Substance: The Standard Model and How to Assess It' 2012
Abstract: Presented at Legal Theory Seminars, University of Girona, 2012.

Luis Duarte D'Almeida, 'Exceptions and Supersession ' 2012
Abstract: Presented at 'Norm and Value', University of Lisbon.

Luis Duarte D'Almeida, 'Do We Need Substantive Law? ' 2012
Abstract: Presented at 'Legal Theory Seminar Series', University of Milan (Bocconi).

Luis Duarte D'Almeida, 'Legal Rules and "Implicit" Exceptions ' 2012
Abstract: Presented at 'Seminar in Legal Theory', University Pompeu Fabra, Barcelona.

Luis Duarte D'Almeida, '"Implicit" Exceptions and Ceteris Ignotis Judgments ' 2011
Abstract: Presented at Legal Theory Seminars, University of Girona.

Luis Duarte D'Almeida, 'Legal Statements and Normative Language ' 2010
Abstract: Presented at II Legal Theory and Legal Philosophy Congress, University of Coimbra.