Chapter

Defeasibility and Legality: A Survey*

Jordi Ferrer Beltrán and Giovanni Battista Ratti

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199661640.003.0002
Defeasibility and Legality: A Survey*

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This chapter analyzes recent trends in legal logic and legal theory and provides a general reconstruction of the debate on legal defeasibility. The chapter is organized as follows. The chapter first gives a brief characterization of the concept of ‘defeasibility’ in general and of ‘legal defeasibility’ in particular. The chapter is then looks to a substantive analysis of the defeasibility of legal standards. It then provides an overview on the question of whether it is meaningful to assert that the criteria of identification of a legal order are defeasible and, if so, what the repercussions on the validity of legal standards are and their possible relations to the applicability of legal standards. The next section of the chapter elaborates on the distinction between validity and applicability of legal norms in light of defeasibility, and proposes a novel distinction between internal and external defeasibility of legal standards, based on the difference between the defeat of the normative content of a legal standard and the defeat of its applicability or validity. The final section briefly presents some possible future applications of the analytical tools proposed in the chapter.

Keywords: legal logic; legal theory; legal defeasibility; legal order; legal norms; legal standards

Chapter.  17586 words. 

Subjects: Jurisprudence and Philosophy of Law

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