Chapter

Defeasibility and Legal Positivism*

Wilfrid Waluchow J.

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/9780199661640.003.0016
Defeasibility and Legal Positivism*

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This chapter defends the view that not only defeasibility (or, to be more precise, the different phenomena this word designates) does not pose any serious threat to legal positivism, but also that defeasibility, properly understood, may be regarded as a valuable theoretical tool for overcoming the schism between inclusive and exclusive legal positivism. In fact, the Exclusive Positivists may be correct when they say that legal validity is normally, and in the first instance, established by way of non-moral, source-based criteria of validity, whereas Inclusive Positivists are right in holding that legal validity may be defeated or cancelled on moral grounds.

Keywords: defeasibility; inclusive legal positivism; exclusive legal positivism; legal validity

Chapter.  9676 words. 

Subjects: Jurisprudence and Philosophy of Law

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