Legal rules

defeasible or indefeasible?

Michał Araszkiewicz

pp. 415-431

in: Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki, Krzysztof Płeszka (eds), Problems of normativity, rules and rule-following, Berlin, Springer, 2015

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.

Cited authors

Schauer Frederick