Is Defeasibility an Essential Property of Law?*

Frederick Schauer

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI:
Is Defeasibility an Essential Property of Law?*

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This chapter advocates a ‘third way’ between the widespread and radical jurisprudential tenets that defeasibility is either a necessary feature of law or an impossible one. It argues that it is a contingent feature of law, depending on the very content of each legal system. More specifically, it argues that the key to the idea of defeasibility is the potential for some applier, interpreter, or enforcer of a rule to make an ad hoc adaptation in order to avoid an absurd or otherwise unacceptable rule-generated outcome. And this implies a very significant conclusion: defeasibility is not, properly speaking, a possible feature of rules; it is rather a characteristic of how some decision-making system will choose to treat its rules.

Keywords: legal defeasibility; rules; decision-making; law

Chapter.  7672 words. 

Subjects: Jurisprudence and Philosophy of Law

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