Chapter

True Exceptions: Defeasibility and Particularism*

Bruno Celano

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/9780199661640.003.0017
True Exceptions: Defeasibility and Particularism*

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The identity assumption is part and parcel of the notion that some norms are not barely wrong, but defeasible. There are various ways of substantiating the identity assumption, corresponding to some main ways of moulding the concept of defeasibility (of norms). This chapter challenges the identity assumption. Or, rather, it distinguishes two different versions of it, and argues that one of them is hollow. It challenges it by reviewing, and rejecting, one of the main ways in which it can be substantiated, namely, a specificationist strategy for dealing with norm conflicts and inappropriate normative verdicts. This leads the chapter to taking a stand in the generalism vs particularism debate. Rejection of the identity assumption leads, when conjoined to an awareness of the phenomena underlying defeasibility claims, to a version of particularism.

Keywords: identity assumption; norms; normative verdicts; generalism; particularism; specificationist strategy

Chapter.  13588 words. 

Subjects: Jurisprudence and Philosophy of Law

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