Abstract
The claim that legal rules are defeasible means that, according to our legal practices, it may be justified for judges to set aside applicable rules in resolving disputes and to take other considerations into account in their place. In line with this approach, this paper seeks to clarify the types of cases and the conditions in which, according to our established conventions, it is acceptable for judges to deviate from what is commanded in legal rules. Specifically, three different cases of defeasibility are differentiated in the paper: D1 (defeasibility at the level of prescriptions contained in the formulation of rules); D2 (defeasibility at the level of underlying justifications of rules), and D3 (radical defeasibility, relative to the hierarchy of legal reasons). Finally, the paper addresses the question of whether we can regard as legal the alternative considerations to which judges must appeal when they consider that they should set aside prima facie applicable rules. The paper concludes by pointing out that the key to drawing the boundaries between ductile law and arbitrary law lies in the affirmative answer to this last question.
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Notes
- 1.
As a starting point for this theoretical approach to the problem of defeasibility I am going to take the manifestations of defeasibility in our legal practice. Therefore, I will not follow the logical approaches inspired by Alchourrón and Bulygin’s conceptual apparatus (Alchourrón and Bulygin 1971; Alchourrón 2010, pp. 77–127, 141–153 and 155–177). In the wake of this kind of logical approach to the problem of legal defeasibility, see The Logic of Legal Requeriments (Ferrer and Ratti 2012).
- 2.
Article 368 of the current Criminal Code.
- 3.
“Starting from the doctrinal distinction between ‘apparent realization’ and ‘effective realization’ of the criminal conduct of the norm, the Supreme Court introduces the political-criminal principle of ‘exclusive protection of legally protected value’. Thus, the Court refuses to subsume in the generic case of the rule cases in which the conduct of the active subject has not put at risk the value underlying the rule, although this conduct is grammatically perfectly subsumable in the generic case of the norm” (Silva Sánchez 1997, p. 315).
- 4.
For example, cases of entry through an open window located on the ground floor (STS of April 20, 1999), or “at street level” (STS of January 18, 1999), or “when there is no evidence of a special height concerning the ground floor or of a special way in which the defendant has managed to get onto the windowsill that reveals the special ability or effort inherent to climbing” (STS of March 10, 2000).
- 5.
The aforementioned rule referred to “crimes regarding toxic drugs, narcotic drugs or psychotropic substances, that the Criminal Code punishes.”
- 6.
“The domicile is inviolable. No entry or registration may be made in it without the consent of the owner or judicial resolution, except in the case of flagrante delicto.”
- 7.
Atienza and Ruiz Manero have maintained that this characterization of rules as protected reasons is applicable only to one type of rules: mandatory rules, but not to other types of legal statements such as principles—which constitute mere first-order reasons—or power conferring rules—which would be auxiliary reasons (Atienza and Ruiz Manero 2007).
- 8.
Thus, according to Silva Sánchez, “there is an increasingly clear tendency in precedents towards overcoming legalistic positivism, which conceives the application of Law as a merely logical operation, as pure subsumption that applies a syllogism. The requirement in art. 5.1 of the Organic Law of Judicial Power, regarding the ‘interpretation of legal norms in accordance with the Constitution’ may have contributed to some extent to this positivistic tendency. However, it seems to be evident that judges and courts … are aware of the need to adopt a certain evaluative perspective when they proceed to interpret positive law, in such a way that the process of applying law can be correctly characterized as a process of obtaining law. In the case of our Supreme Court, it seems that this evaluative perspective acquires significant teleological features, in such a way that the interpretation of rules is subject to material political-criminal purposes of criminal law, leading to a guarantee-based application of the law” (Silva Sánchez 1997, p. 314).
- 9.
According to Raz, it is possible to distinguish between “reasoning to establishing the content of Law” and “reasoning according to Law.” In the first case, the interpreter makes a reasoning based solely on the sources of law and, therefore, autonomous. But it is possible that the result of such reasoning is the granting of discretion to judges to depart from what the law establishes if relevant moral reasons are given for it. If this were the case, the second type of reasoning, reasoning according to law, would enter the scene and the judge would have the discretion to deviate from the legal guidelines identified according to the sources’ thesis and apply moral reasons (Raz 1994, p. 310).
- 10.
As will be seen shortly, I am going to characterize D1 as defeasibility at the level of prescriptions contained in the formulation of rules, D2 as defeasibility at the level of the justifications underlying rules, and finally, D3 as radical defeasibility or defeasibility of reason provided by law.
- 11.
These legal standards include legal practices that remit to dominant semantic conventions and to interpretative conventions.
- 12.
Or more precisely, some defeasible rules in the third sense of defeasibility or D3.
- 13.
Juan Ruiz Manero has worked on a type of conflict that can illustrate this type of situation in Ruiz Manero (2018), pp. 30 ss.
- 14.
Law of June 18, 1870, modified by Law 1/1988, of January 14 in Articles: 2, 3, 10, 11, 15, 20, 22, 23, 24, 26, 28, 29 and 30.
- 15.
This is how pardon is characterized by the Supreme Court: “pardon is an act with features of atypicality within the framework of the constitutional rule of law… because it involves a certain rejection of the principle of generality of criminal law and of those of independence and exclusivity of the jurisdiction” (ATS of January 18, 2001, Appeal 2940/1997).
- 16.
Article 11 Pardon Law.
- 17.
Ground 8.
- 18.
Ground 8.
- 19.
The expression “ductility of Law” is inspired by the title of the renowned book in the continental legal culture by Gustavo Zagrebelsky El Derecho dúctil. Ley, derechos, justicia (Zagrebelsky 2003).
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Ródenas, Á. (2023). Legal Defeasibility: The Limits Between Ductile Law and Arbitrary Law. In: Demetrio Crespo, E., García Figueroa, A., Marcilla Córdoba, G. (eds) Crisis of the Criminal Law in the Democratic Constitutional State. Legal Studies in International, European and Comparative Criminal Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-031-13413-5_9
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