Against Defeasibility of Legal Rules*

Jorge L. Rodriguez

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI:
Against Defeasibility of Legal Rules*

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This chapter focuses on the thesis that all legal rules are defeasible in the sense that they are open to a set of exceptions incapable of exhaustive statement. It presents this thesis through an analysis of Schauer's ideas on the under- and over-inclusive character of rules. It shows first, that under-inclusiveness is not a genuine problem of rules; second, that the differences between over-inclusiveness and defeasibility are broader than those Schauer acknowledges; and third, that the strong defeasibility thesis has the consequence of turning rules into useless tools for practical reasoning. On those grounds, the chapter considers two different arguments that may and have been held to justify the claim that legal rules are defeasible, based on the difficulties involved in the identification of rules from legal materials. The aim here is to demonstrate that, in spite of their initial soundness, both arguments fail to validate the conclusion that legal rules are subject to exceptions impossible to state exhaustively in advance. The chapter concludes with some remarks on the compatibility between legal positivism and the strong defeasibility thesis.

Keywords: legal defeasibility; legal rules; Schauer; legal positivism

Chapter.  11961 words. 

Subjects: Jurisprudence and Philosophy of Law

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