Chapter

Rules, Principles, and Defeasibility*

Manuel Atienza and Juan Ruiz Manero

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/9780199661640.003.0015
Rules, Principles, and Defeasibility*

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This chapter advocates for the inherent (nearly necessary) defeasibility of law, based on the idea (originally elaborated by Dworkin) that contemporary law is made on two axiological levels — principles and rules — and that defeasibility is but the ‘gap’ between these two levels: more precisely, it is the failure of the rule to give a correct implementation to its underlying principle or principles. This would refute legal positivism for it famously does not admit any reference to moral reasoning in order to identify the content of the law.

Keywords: defeasibility; contemporary law; principles; rules; legal positivism; moral reasoning

Chapter.  9776 words. 

Subjects: Jurisprudence and Philosophy of Law

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