Abstract
This paper proposes a middle-ground solution in the dispute between legal defeasibilism and indefeasibilism. Several different readings of the concept of the defeasibility of legal rules are considered. The focus is on the concept referred to as the strong defeasibility of legal rules as defined by Frederick Schauer, that is, the alleged feature of rules according to which their conclusions may be contested on the basis of unspecified list of reasons. The paper analyzes the arguments of both proponents and opponents of legal defeasibilism. The opposing views are analyzed from the point of view of argumentation schemes theory. Certain points of disagreement in the ongoing debate between these two approaches are assessed as apparent only. Ultimately, the strong defeasibility thesis is rejected. A conception of contextually complete legal rules is presented and justified. The presented theory offers a third way in the debate between legal defeasibilism and indefeasibilism, preserving important insights that are present in the two competing theories.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
From the point of view of legal theory, it is often indicated that H. L. A. Hart in one of his early papers (Hart 1948/1949) introduced certain ideas that provided the foundation for contemporary research on defeasibility in law.
- 2.
For a discussion of the concept of defeasibility in the context of deontic logics, see van der Torre and Tan (1997).
- 3.
Cf. Hage (2005, p. 8).
- 4.
- 5.
In one of this recent contributions, Frederick Schauer (2012, (87)) adopts a similar (albeit more nuanced) position according to which “defeasibility is not a property of rules at all, but rather a characteristic of how some decision-making system will choose to treat its rules”.
- 6.
See Rodriguez (2012, p. 96), discussing Schauer’s views.
- 7.
Cf., for instance, Alexy (1989).
- 8.
In this reading, the rule-based argument scheme may be considered as an informal description of application of the Modus Ponens inference pattern.
References
Alexy, Robert. 1989. A theory of legal argumentation. The theory of rational discourse as theory of legal justification. (Trans: R. Adler, N. MacCormick). Oxford: Clarendon. (1st German ed. 1978).
Alexy, Robert. 2003. Balancing and subsumption. A structural comparison. Ratio Juris 16:433–449.
Bayón, Juan Carlos. 2001. Why is legal reasoning defeasible? In Pluralism and law, ed. Arend Soeteman, 251–278. Dodrecht: Kluwer.
Brożek, Bartosz. 2004. Defeasibility of legal reasoning. Kraków: Zakamycze.
Brożek, Bartosz. 2007. Rationality and discourse. Towards a normative model of applying law. Warszawa: Oficyna a Wolters Kluwer Business.
Cohen, Stewart. 1986. Knowledge and context. Journal of Philosophy 83:574–583.
DeRose, Keith. 2009. The case for contextualism: Knowledge, skepticism, and context, Vol. 1. Oxford: Clarendon.
Dworkin, Ronald. 1978. Taking rights seriously. Cambridge: Harvard University Press.
Ferrer Beltrán, Jordi, and Giovanni Battista Ratti 2010. Validity and defeasibility in the legal domain. Law and Philosophy 29:601–626.
Ferrer Beltrán, Jordi, and Giovanni Battista Ratti, eds. 2012. The logic of legal requirements. Essays on defeasibilism. Oxford: Oxford University Press.
Gordon, Thomas F., and Douglas Walton. 2006. The Carneades argumentation framework—using presumptions and exceptions to model critical questions. In Proceedings of the first International Conference on Computational Models of Argument (COMMA 06), ed. P. E. Dunne, 195–207.
Gordon, Thomas F., and Douglas, Walton. 2009. Legal reasoning with argumentation schemes. In ICAIL, 137–146. New York: Association for Computing Machinery.
Guastini, Riccardo. 2012. Defeasibility, axiological gaps and interpretation. In The logic of legal requirements. Essays on defeasibilism, eds. Jordi Ferrer Beltrán and Giovanni Battista Ratti, 182–192. Oxford: Oxford University Press.
Hage, Jaap. 2005. Law and defeasibility. In Studies in legal logic, 7–32. Berlin: Springer.
Hart, Herbert L. A. 1948/1949. The ascription of responsibility and rights. Proceedings of the Aristotelian Society New Series 49:171–194.
Lewis, David. 1996. Elusive knowledge. Australasian Journal of Philosophy 74:549–567.
Loui, Ronald. 1987. Defeat among arguments: A system of defeasible inference. Computational Intelligence 3:100–106.
Pollock, John. 1987. Defeasible reasoning. Cognitive Science 11:481–518.
Pollock, John. 1992. How to reason defeasibly. Artificial Intelligence 57:1–42.
Pollock, John. 1994. Justification and defeat. Artificial Intelligence 67:377–408.
Pollock, John. 1995. The structure of defeasible reasoning. In Cognitive carpentry. A blueprint for how to build a person, 85–140. Cambridge: MIT Press.
Prakken, Henry. 1997. Logical tools for modelling legal argument. A study of defeasible reasoning in law. Dordrecht: Kluwer.
Prakken, Henry, and Gerard Vreeswijk. 2002. Logics for defeasible argumentation. In Handbook of philosophical logic. 2nd ed. Vol. 4, eds. Dov Gabbay and Franz Guenthner, 219–318. Dodrecht: Kluwer.
Prakken, Henry, and Giovanni Sartor. 2004. The three faces of defeasibility in the law. Ratio Juris 17:118–139.
Rahwan, Iyad, and Guillermo Simari, eds. 2009. Argumentation in artificial intelligence. Berlin: Springer.
Ratti, Giovanni Battista. 2013. Normative inconsistency and logical theories: A first critique of defeasibilism. In Coherence: Insights from philosophy, jurisprudence and artificial intelligence, eds. Michał Araszkiewicz and Jaromír Šavelka, 123–135. Dordrecht: Springer.
Rodriguez, Jorge. 2012. Against defeasibility of legal rules. In The logic of legal requirements. Essays on defeasibilism, eds. Jordi Ferrer Beltrán and Giovanni Battista Ratti, 89–107. Oxford: Oxford University Press.
Rysiew, Patrick. 2011. Epistemic Contextualism. The Stanford encyclopedia of philosophy (Winter 2011 Edition), ed. Edward N. Zalta. http://plato.stanford.edu/archives/win2011/entries/contextualism-epistemology/. Accessed 30 Jan 2014.
Sartor, Giovanni. 1995. Defeasibility in legal reasoning. In Informatics and the foundations of legal reasoning, eds. Zenon Bankowski, Ian White, and Ulrike Hahn, 119–137. Dordrecht: Kluwer.
Sartor, Giovanni. 2012. Defeasibility in legal reasoning. In The logic of legal requirements. Essays on defeasibilism, eds. Jordi Ferrer Beltrán and Giovanni Battista Ratti, 108–136. Oxford: Oxford University Press.
Schauer, Frederick. 1998. On the supposed defeasibility of legal rules. In Legal theory at the end of the millennium, current legal problems, vol. 51, ed. M. D. A. Freeman, 223–240. Oxford: Oxford University Press.
Schauer, Frederick. 2012. Is defeasibility an essential property of law? In The logic of legal requirements. Essays on defeasibilism, eds. Jordi Ferrer Beltrán and Giovanni Battista Ratti, 77–88. Oxford: Oxford University Press.
Simari, Guillermo, and Ronald Loui. 1992. A mathematical treatment of defeasible reasoning and its implementation. Artificial Intelligence 53:125–157.
Van der Torre, Leendert, and Yao-Hua Tan. 1997. The many faces of defeasibility in defeasible deontic logic. In Defeasible deontic logic, ed. Donald Nute, 79–122. Dordrecht: Kluwer.
Walton, Douglas. 2006. Fundamentals of critical argumentation. Cambridge: Cambridge University Press.
Walton, Douglas, and Chris Reed. 2002. Argumentation schemes and defeasible inferences. Workshop on computational models of natural argument. In ECAI 2002. 15th European Conference on Artificial Intelligence, ed. Giuseppe Carenini, Floriana Grasso and Chris Reed, 45–55.
Acknowledgments
The author thanks Jaap Hage, Giovanni Battista Ratti, and Andrej Kristan for their valuable comments in connection with the presentation of this paper during the RULES 2013 (September 27–29) conference in Kraków.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Araszkiewicz, M. (2015). Legal Rules: Defeasible or Indefeasible?. In: Araszkiewicz, M., Banaś, P., Gizbert-Studnicki, T., Płeszka, K. (eds) Problems of Normativity, Rules and Rule-Following. Law and Philosophy Library, vol 111. Springer, Cham. https://doi.org/10.1007/978-3-319-09375-8_31
Download citation
DOI: https://doi.org/10.1007/978-3-319-09375-8_31
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-09374-1
Online ISBN: 978-3-319-09375-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)