Abstract
The chapter concerns what was perhaps one of the hottest subjects in recent jurisprudential inquiry, defeasibility, exploring its connection with another hot spot, legal indeterminacy. Considering linguistic therapy the lot of useful philosophical enquiry, it proceeds to the analysis of the “structure” of philosophical thought on the matter, proposing a rational reconstruction thereof. The ultimate goal is contributing to the laying down of a sound, realistic, theory of defeasible norms.
it is usually not possible to define a legal concept such as “trespass” or “contract” by specifying the necessary and sufficient conditions for its application. For any set of conditions may be adequate in some cases but not in others, and such concepts can only be explained with the aid of a list of exceptions or negative examples showing where the concept may not be applied or may only be applied in a weakened form
—H.L.A. Hart (1948–1949)
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Notes
- 1.
Methodological awareness shows itself, for instance, in the following dispositions: avoiding any confusion between theory and ideology, being aware of the different levels of discourse, having a theory of definition (where lexicographic definitions and stipulative definitions are carefully kept separate), distinguishing between theory and definition, subject-of-enquiry and method of enquiry, conceptual frameworks and “the world”, etc. And, of course, endorsing the principles and tools of analytical investigations I rehearsed at the outset: see Chap. 1, Sects. 1.2 and 1.3 above.
- 2.
- 3.
See Alchourrón and Bulygin (1971), ch. 1. What about a situation where the judge has identified one legal norm as relevant (say, through the textual interpretation of a given legal provision), but this norm proves, in turn, ambiguous? I consider such a case to be tantamount to a situation of plurality of competing answers, and will deal with it in a moment, under the heading of ambiguous legal provisions.
- 4.
For instance, by stipulating that any deal made on Saturday is a “sacrilegious contract”; that any trained dolphin, to be used by a child for riding in the park’s pond, is a “vehicle”; that any post-card expressing ever-lasting love to a city or other place on earth is a (piece of a) “living will”; that any street like Park Avenue is a “park”, etc.
- 5.
- 6.
From the viewpoint I have adopted in the text, the existence of gaps of recognition, as defined by Alchourrón and Bulygin, precisely depends on the partial defective guidance offered by the single translation rule assumed to be paramount: “Let words be read according to their conventional semantic rules”. On translation rules, see Chap. 2, Sect. 2.2.1.1, Chap. 3, Sect. 3.4, above.
- 7.
- 8.
- 9.
- 10.
- 11.
- 12.
For such an indeterminacy situation, see Bulygin (1981), p. 42 ff.
- 13.
- 14.
- 15.
Hart (1948–1949), pp. 145–166.
- 16.
- 17.
See, e.g., Rodríguez and Sucar (1998), p. 103 ff., 143.
- 18.
- 19.
It goes without saying, of course, that the very same, supposedly “naïf” normativism of the present days is, in its turn, an advanced, sophisticated, form of “critical” normativism, if compared to the “naïf” normativism characterizing jurisprudence in the nineteenth and twentieth centuries.
- 20.
Hage (2004), p. 1, italics added; Hage (2003), p. 221 ff. See also Sartor (2006), p. 10, for a similar idea of an “ontic defeasibility”: “there are facts […] that are normally sufficient to determine certain legal or moral outcomes, but can be made irrelevant (undercut) or can be outweighed (rebutted) by further facts […] when seen from the ontic perspective, defeasibility does not pertain to conclusions or rules, but rather to facts, in the sense of relevant aspects of the situation at issue, and it concerns their ability to constitute normative (legal or moral) qualifications and effects”. However, there is no relevance at all without some (presupposed) criterion of relevance: i.e., some standards according to which certain facts are to be deemed relevant (important, worthwhile considering, etc.) in view of regulating a situation.
- 21.
- 22.
- 23.
Hart (1948–1949), pp. 148, 149 footnote 1.
- 24.
Hart (1948–1949), p. 147.
- 25.
See Hart (1948–1949), p. 147, 148, 150. To quote a key passage: “it is usually not possible to define a legal concept such as “trespass” or “contract” by specifying the necessary and sufficient conditions for its application. For any set of conditions may be adequate in some cases but not in others, and such concepts can only be explained with the aid of a list of exceptions or negative examples showing where the concept may not be applied or may only be applied in a weakened form” (p. 148, italics added). In a later essay, the conditions after the unless-clause are classified under two basic headings: excusing conditions and invalidating conditions: see Hart (1958b), p. 96.
- 26.
MacCormick (1995), p. 115, italics added.
- 27.
- 28.
As we have seen (see, e.g., Chap. 5, Sects. 5.2 and 5.4, above) there are indeed two kinds of norms from this perspective: explicit norms and implicit norms. Implicit norms are sentences representing norms that, by hypothesis, are not the meaning of any legal provision, being rather identified by means of certain argumentative processes from one or more explicit and/or implicit norms (e.g. by analogical or a contrario reasoning).
- 29.
See Alchourrón (1996b), p. 341 ff., where he outlines a “dispositional approach” for the interpretive identification of the negative conditions that may be regarded either as “implicit exceptions”, or as “implicit non-exceptions”, or even as “indeterminate as exceptions”, from the point of the (counterfactual) dispositions of the lawgiver. See, also, Ferrer Beltrán and Ratti (2008), where, from an interpretive approach perspective (one dealing, I would say, with the “sources” of defeating conditions), they distinguish between “teleological” (background reasons), “authoritative” (lawgiver’s actual intention), and “dispositional” (lawgiver’s counterfactual intention) defeasibility.
- 30.
See, e.g., Bayón (1997), pp. 184–185; Rodríguez (1997), p. 97 ff.; Rodríguez and Sucar (1998), p. 116. The very same idea is conveyed by at least two further theories of legal interpretation (two further psychological, or cognitive, models of the process of legal interpretation), where, however, the term “defeasibility” does not (still) show up. On the one hand, there is the hermeneutic model, centred on the idea of hermeneutic circles. See, e.g., Alexy (1993), p. 416 ff. On the other hand, there is the feedback or retroactive model, centred on the distinction between a “first interpretation” and the several, following “re-interpretations” of the same legal provision. See, e.g., Chiassoni (1990), p. 121 ff. and Chiassoni (2011), ch. 2. See also Chap. 3 above.
- 31.
According, e.g., to Sartor (2006), p. 11: “Defeasible reasoning [is] a structured process of enquiry, based upon drawing pro-tanto conclusions, looking for their defeaters, for defeaters of defeaters, and so on, until stable results can be obtained”; see also Sartor (2005), p. 79; MacCormick (2005), pp. 252–253, where reasoning in law is presented as “arguing defeasibly”; Prakken and Sartor (2004), p. 118 ff.
- 32.
See, e.g., Hage (1997), p. 4 ff.
- 33.
- 34.
On this point, see also Bayón (2001), pp. 334–335.
- 35.
Prakken and Sartor (2004), p. 118: “legal conclusions, though correctly supported by certain pieces of information, cannot be inferred when the theory including this information is expanded with further pieces of information (we use the term “theory” to mean in general any set of premises intended to provide an account of a legal domain)”.
- 36.
See Sartor (2006), p. 12: “procedural defeasibility” is characterized as “the defeasibility of the outcomes of legal proceedings, depending to [on] the distribution of the burden of proof between the parties”.
- 37.
Prakken and Sartor (2004), pp. 130, 131, 133: “[theory-based defeasibility] results from the evaluation and choice of theories which explain and systematize the available input information […] different theories of the same legal domain are possible, we need ways of comparing those theories and […] selecting the most appropriate one […] the parties in a case, given a shared legal background, develop alternative legal theories, and victory goes to the party who develops the better theory […] theory-based argumentation, the idea that legal debates consist of the dialectical exchange of competing theories, supporting opposing legal conclusions in the issue at stake [and where] the weaker (less coherent) theory is defeated by the stronger one”.
- 38.
MacCormick (1995), p. 99, italics added.
- 39.
MacCormick (2005), p. 252.
- 40.
Sometimes, legal theorists seem to claim, not that legal norms usually are, or are treated as, defeasible by jurists, judges, etc. (see, e.g., Alchourrón 1996b, p. 341), but that they are necessarily so. Consider, for instance, the following passage from Atria 2002 (quoted critically by MacCormick 2005, p. 252): “Hence the rules formulated by legal agencies are always defeasible for the sake of better pursuing these aims and values through an appropriately nuanced interpretation of them, and with a regulated discretion in applying them […] Defeasibility of rules is built into the kind of activity that regulative institutions define through these rules” (italics added). For a sceptical stance on the issue see, e.g., Schauer (1998), pp. 223–240.
- 41.
- 42.
- 43.
- 44.
According to Bayón, for instance, defeasible norms are norms with “open-ended character”, i.e. “they are subject to implied exceptions which cannot be exhaustively specified in advance” (Bayón 2001, p. 338). The logical form of such a norm would be, for instance, something like the following: “(x) (Ax & Bx) & ¬(Dx v Ex v ...) –> ORx”. From this perspective, notice, closed-defeasible norms are not “really” defeasible norms. I will come back to this issue soon in the text.
- 45.
Bayón (1997), p. 188.
- 46.
For instance, Richard Tur claims apparently that legal norms ought to be considered, and treated, as open-defeasible norms basically on two counts. First, because of tradition’s sake: they have been treated as open-defeasible standards all the time (at least, in a legal system such as the English common law). Second, because of the superior rationality of such an option: in fact, treating legal norms as undefeasible prescriptions would amount to endorsing a “flatly formalistic approach to law application” (Tur 2001, pp. 355–368). He also develops a descriptive side, grounded on the following points: Law is best represented, most clearly understood, and most effectively taught as defeasible. Law’s defeasibility depends on the open-ended defeasibility of legal norms. Legal norms, as open-ended defeasible norms, are better represented and understood—taking stock of Kelsen’s, Hart’s, and Critical Legal Studies’ inquiries—as normative conditional propositions, where the normative consequence is subject to a double set of open-ended defeating (negative) alternative conditions: on the one hand, “operative” exceptions, that may be either pre-established (explicit, specified), or yet to be established (implicit, unspecified); on the other hand, overrides (“overriding considerations”), i.e., defeating considerations of equity or justice, policy, purpose, mercy, rights, and “any other ‘damn good reason’ and ‘compelling objection’” (p. 368). Accordingly, the proper logical form for a legal norm would be something like the following: “if A, then ought to be B, unless either (1) operative specified or yet-to-be-specified exceptions (e1 … en) or (2) overriding considerations from the legal system’s basic standards/values (inner morality) (oc1 … ocn)”. See also MacCormick (1995), p. 115; MacCormick (2005), p. 241.
- 47.
MacCormick (2005), p. 240 ff., italics added.
- 48.
The same remarks apply to judge-made and other unwritten law norms, in their standard, established form.
- 49.
- 50.
See, e.g., Guastini (2008), p. 97 ff.
- 51.
Consider the following legal provision at the entrance of a fine arts museum: “Couples allowed”. In its literal reading it may express, from the viewpoint of some appropriateness standard, an over-inclusive norm for, apparently, it allows into the museum any sort of couple whatsoever—married heterosexual couples, unmarried heterosexual couples, married homosexual couples, unmarried homosexual couples, inter-species couples, couples of friends, couples of fine-arts-freak cyberdogs, etc.
- 52.
Consider the following legal provision at the entrance of a fine arts museum: “Married couples only”. In its literal reading, it expresses what I am calling a complex literal norm. Indeed, the legal provision expresses two norms jointly: one positive norm, or positive component of the complex norm (“Married couples allowed”), and one negative norm, or negative component of the complex norm (say, “Unmarried couples and singles not allowed”). The same outcome may have been obtained by way of an a contrario exclusionary interpretation of the following legal provision at the entrance of the fine arts museum: “Married couples”. In both cases, from the viewpoint of some appropriateness standards (say, one consisting in a certain principle of human equality or human dignity), the negative component of the norm might appear sub-optimal, and the complex norm over-reaching.
- 53.
- 54.
The same remarks would hold, of course, for any “standard” norm: i.e. for any norm, e.g. a judge-made norm, circulating in a standard formulation.
- 55.
See Chiassoni (2011), ch. 3, § 8.
- 56.
- 57.
Several legal philosophers make this claim, though for different reasons. One of the most original positions is set forth in Bayón (1997), p. 182 ff. There, Bayón explains norm-defeasibility (what I would call, roughly, their open- and implicit- defeasibility) by resorting to the idea of a “closure rule as to relevance”, presented as an “interpretative convention” according to which norms ought to be regarded as liable to explicit exceptions only. As a consequence, norms are “defeasible” (in Bayón’s sense), when such an interpretive principle is not part of what I would call the “authoritative” or “conventional” interpretive code of a given legal order.
- 58.
See Alchourrón (1996b), p. 331 ff.
- 59.
See, e.g., Rodríguez and Sucar (1998), pp. 116–118, 143: “it is possible to account for the different problems that may suggest using the notion of defeasibility in relation to legal norms without making use of that idea”.
- 60.
See, e.g., Alchourrón (1996b), p. 341 ff.: “Usually our understanding of the rule will allow us to give a list of implicit exceptions as well as a list of circumstances which are not mentioned because they are rejected as exceptions. But the relativity of the notion of normality makes many situations ambiguous from the interpreter’s point of view […] Unless the exceptions are made explicit the conceptual content of the normative expression is left undetermined [...] Defeasibility, more than simple ambiguity, makes the identification of the norms of a legal system very difficult”; Bayón (1997).
References
Alchourrón CE (1993) Philosophical foundations of deontic logic and the logic of defeasible conditionals. In: Meyer J, Wieringa R (eds) Deontic logic in computer science: normative system specification. Wiley & Sons, London, pp 43–84
Alchourrón CE (1995) Para una Lógica de las Razones Prima Facie, unpublished manuscript
Alchourrón CE (1996a) Detachment and Defeasibility in deontic logic. Studia Logica 57:5–18
Alchourrón CE (1996b) On law and logic. Ratio Juris 9:331–348
Alchourrón CE, Bulygin E (1971) Normative systems. Springer, Wien
Alexy R (1993) Rechtsinterpretation, it. tr., Interpretazione giuridica. In: Enciclopedia delle scienze sociali. Istituto dell’Enciclopedia Italiana, Roma, 7:416–423
Atria F (2002) On law and legal reasoning. Hart, Oxford
Bayón JC (1997 [2003]) Derrotabilidad, indeterminación del derecho y positivismo jurídico. In: Bayón JC, Ródriguez (ed) Relevancia normativa en la justificación de las decisiones judiciales. El debate Bayón-Rodríguez sobre la derrotabilidad de las normas jurídicas. Gaido P, Sánchez R, Seleme HO (eds) Externado, Bogotá, pp 157–208
Bayón JC (2001) Why is legal reasoning defeasible? In: Soeteman A (ed) Pluralism in law. Kluwer, Dordrecht, pp 327–346
Bentham J (1791) Of laws in general. In: Hart HLA (ed) The Athlone Press, London, 1970
Bulygin E (1981 [1995]) Teoria e tecnica della legislazione. In: Bulygin E (ed) Norme, validità, sistemi normativi. Giappichelli, Torino, pp 29–49
Chiassoni P (1990) L’interpretazione della legge: normativismo semiotico, scetticismo, giochi interpretative. In: AA.VV. Studi in memoria di Giovanni Tarello, Vol II. Giuffrè, Milano, pp 121–161
Chiassoni P (2011) Técnicas de interpretación jurídica. Breviario para juristas. Marcial Pons, Madrid-Barcelona-Buenos Aires
Ferrer Beltrán J, Ratti GB (2008) Validità, defettibilità, e criteri di riconoscimento, unpublished manuscript
Guastini R (2008) Nuovi studi sull’interpretazione. Aracne, Roma
Hage J (1997) Reasoning with rules. An essay on legal reasoning and its underlying logic. Kluwer, Dordrecht
Hage J (2003) Law and defeasibility. Artif Intell Law 11(2–3):221–243
Hage J (2004) Law and defeasibility. IVR – Encyclopaedia Jurisprud Leg Theory Philos Law
Hansson B (1969) An analysis of some deontic logics. Nous 3:373–398
Hart HLA (1948–1949 [1951]) The ascription of responsibility and rights. In: Flew AGN (ed) Logic and language. First series. Blackwell, Oxford, pp 145–166
Hart HLA (1954 [1983]) Definition and theory in jurisprudence. In: Hart HLA (ed) Essays in jurisprudence and philosophy. Clarendon Press, Oxford, pp 21–48
Hart HLA (1958b [1968]) Legal responsibility and excuses. In: Hart HLA (ed) Punishment and responsibility. Essays in the philosophy of law. Clarendon Press, Oxford, pp 28–53
Larenz K (1979) Methodenlehre der Rechtswissenschaft. Sp. tr. Metodología de la ciencia del derecho. Ariel, Barcelona, 1994
MacCormick N (1995) Defeasibility in law and logic. In: Bankowski Z, White I, Hahn U (eds) Informatics and the foundations of legal reasoning. Kluwer, Dordrecht, pp 99–117
MacCormick N (2005) Rhetoric and the rule of law. A theory of legal reasoning. Oxford University Press, Oxford
Prakken H, Sartor G (2004) The three faces of defeasibility in law. Ratio Juris 17(1):118–139
Rodríguez JL (1997) La derrotabilidad de las normas jurídicas. In Bayón JC, Ródriguez (2003) Relevancia normativa en la justificación de las decisiones judiciales. El debate Bayón-Rodríguez sobre la derrotabilidad de las normas jurídicas, Gaido P, Sánchez R, Seleme HO (eds) Externado, Bogotá, pp 67–101
Rodríguez JL, Sucar G (1998 [2003]) Las trampas de la derrotabilidad. Niveles de análisis de la indeterminación del derecho. In: Bayón JC, Ródriguez, Relevancia normativa en la justificación de las decisiones judiciales. El debate Bayón-Rodríguez sobre la derrotabilidad de las normas jurídicas, Gaido P, Sánchez R, Seleme HO (eds) Externado, Bogotá, pp 103–155
Sartor G (2005) Legal reasoning. A cognitive approach to the law. Springer, Dordrecht
Sartor G (2006) Syllogism and Defeasibility: A Comment on Neil MacCormick’s Rhetoric and the Rule of Law, Florence, European University Institute, EUI Working Paper Law No. 2006/23
Schauer F (1991b) Exceptions. Univ Chicago Law Rev 58:871–899
Schauer F (1998) On the supposed defeasibility of legal rules. Curr Legal Probl 51:223–240
Tur RHS (2001) Defeasibilism. Oxf J Leg Stud 21(2):355–368
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Chiassoni, P. (2019). Defeasibility and Legal Indeterminacy. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_10
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