The Exception Proves the Rule

Abstract

Legal rules admit of exceptions; indeed, it has been a legal maxim that one can infer the existence of a rule from exceptions that are made to it. Hart claims that the exceptions do not admit of exhaustive statement (a form of legal particularism) but that nonetheless rules can bind. This paper develops a logical framework which accommodates this position, shows that it is available to a positivist, elucidates the role of rules within it, and concludes by discussing the relevance to issues of judicial discretion.