Defeasible Rules and Interpersonal Accountability*

Bruce Chapman

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI:
Defeasible Rules and Interpersonal Accountability*

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This chapter discusses the moral argument that supports the process that private common law adjudication adopts under defeasible rules. It argues that this process provides for interpersonal respect and accountability between the parties in a way that a single stage summary rule does not. In advancing arguments one way or the other under the single stage summary rule, each party looks past the other to the (moral) world and, more particularly, towards some (moral) fact in that world made salient by the rule. The opposite of this model is the model of defeasible rules, which shifts each party's accountability from a world independent of them to a world which they construct themselves with the justifiable claims they make upon one another. Under the model of defeasible rules, the parties are less accountable to what is morally correct or true, and more to what authoritative demands they can justifiably make upon one another, in back and forth fashion, as they construct the rule and set the scope of its final application. In this regard, the model of defeasible rules provides more for the parties' joint exercise of a collective or shared rationality under the developing rule than it does for the joint accountability of these parties to some shared reason under a more truthful rule. This in turn would be a powerful argument to consider Hart's positivism as the winning party in the debate with Fuller's or Dworkin's antipositivism.

Keywords: private common law adjudication; single state summary rule; defeasibility; positivism; antipositivism

Chapter.  10510 words. 

Subjects: Jurisprudence and Philosophy of Law

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