Revus

Journal for Constitutional Theory and Philosophy of

Law / Revija za ustavno teorijo in filozofijo prava
18 | 2012
Ustavna demokracija

The Logic of Legal Requirements. Essays on

Defeasibility
Book Review

Vojko Strahovnik

Electronic version
URL: http://journals.openedition.org/revus/2341
ISSN: 1855-7112

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Printed version
Date of publication: 10 December 2012
Number of pages: 179-190
ISSN: 1581-7652

Electronic reference
Vojko Strahovnik, « The Logic of Legal Requirements. Essays on Defeasibility », Revus [Online],
18 | 2012, Online since 07 March 2013, connection on 19 April 2019. URL : http://
journals.openedition.org/revus/2341

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 revus (2012) 18, 179–190 179

Vojko Strahovnik*

The Logic of Legal Requirements.

Essays on Defeasibility
Book review of The Logic of Legal Requirements. Essays on Defeasibility (Eds. Jordi Ferrer
Beltrán and Giovanni Battista Ratti), Oxford: Oxford University Press 2012

1The book The Logic of Legal Requirements is of law (legal norms) itself as admitting of excep-
an impressive and engaging collection of high- tions that cannot be fully spelled out and speci-
quality essays on legal defeasibility. It features ied in advance (norm based account of legal
twenty-two contributions resulting in a compre- defeasibility) or defeasibility in legal reasoning
hensive, well structured as well as very challeng- as a consequence of interpretation of legal pro-
ing investigation of the subject. In what follows I visions or concepts (interpretation based ac-
will irst introduce the subject of legal defeasibili- count of legal defeasibility). Related to the very
ty in the light of the present collection. Then after concept of defeasibility one can pose several
briely presenting the contents of the collection basic questions. Starting with the deinition of
as a whole and topics and main lines of thought the term one can go on to ask what does it mean
present in it I will briely sketch the main ideas in for something to be defeasible. What is or can
all contributions, though space only permits me be defeasible? What is the scope of defeasibility
to deal a bit more closely with just a number of in the chosen domain? What is speciic for legal
selected contributions, critically assessing the defeasibility? What are the sources of this defea-
main arguments in them. In the introduction the sibility and what are its consequences? Answers
editors, Ferrer Beltrán and Ratti, set a relatively to these questions vary in the debate and we
modest aim for the collection, namely to cast can ind deep disagreements on almost all of the
some light on diferent meanings and uses of mentioned aspects.
“defeasibility” in legal thought and clarifying the The collection as a whole does well in expos-
scope of “objects”, which supposedly embody it. ing and clarifying them and presenting argu-
It certainly achieves that and much more, since ments for diferent views. It covers a wide area
contributions manage to situate the reader in the of debate on legal defeasibility. As a whole one
midst of the current state of the debate on the could present it along several dimensions. From
topic, bringing together prominent authors from the perspective of the prevalence of defeasibility
the Anglo-American and Continental tradition the majority of authors in the collection defend
of legal thought and by that addressing several at least one kind of legal defeasibility. A minority
other related and important questions in legal opposes it, mostly ofering a competing explana-
theory and philosophy. tion of the phenomena supposedly related to de-
Usually by defeasibility in the legal domain feasibility. Among the defenders of legal defeasi-
one aims to stress either the defeasible nature bility the most common understanding seems to
be that linked with defeasibility being related to
* [email protected] | Assistant Pro-
fessor and Researcher in Philosophy, University of interpretation. Some authors are concerned with
Ljubljana and Faculty of Government and Europe- consequences of defeasibility for moral theory,
an Studies especially regarding the plausibility of (strict) le-

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 180 BOOKS

gal positivism, but also with more general con- tion to that one must add a prerequisite that “it is
sequences for other central legal concepts such theoretically impossible to enumerate all the ex-
as validity, exception, principle, action, reason, ceptions and state all the suicient conditions for
and axiological gap. Others are more focused on the rule’s application (p. 15)”. On the other hand
the aspect of what are (or should be) the conse- the “interpretation based accounts” claim that
quences of defeasibility for legal practice. A con- defeasibility is a product of the interpretation
trasting perspective is also present, namely how of legal provisions. Here Ferrer Beltrán and Ratti
does legal practice itself inform the debate on address the question whether standard, that is
defeasibility. Finally, several papers deal impor- monotonic, (deontic) logic is capable of accom-
tantly with defeasibility in relation to legal argu- modating such a conception of defeasibility.
mentation and logic. They argue that proponents of non-monotonic
The collection is divided into four parts. Part logic approach must back down from their claim
I features seven papers that deal with general that only by introduction of non-monotonicity
features of legal defeasibility. Part II includes ive one can also have defeasibility (both in the sense
papers that deal with the notion of defeasibility that such logic can account for the existence of
as related to legal interpretation. In part III we genuine normative conlicts and in the sense of
can ind six papers that investigate the conse- ofering a possible solution to them – this last bit
quences of defeasibility for the very concept of is actually begging the question against standard
law. Part IV comprises of four papers dealing with logic, since logic is usually not in the business
defeasibility as related to adjudication. of providing inal solutions for such conlicts; it
Part I mostly discusses basic concepts like is perfectly enough that it locates them). One
law, norm, interpretation, logic, and reasoning in further useful distinction that Ferrer Beltrán and
relation to the concept of defeasibility. It opens Ratti make in the introduction is that between
with an excellent and exhaustive introductory “moral defeasibility of legal standards” and “legal
piece by Ferrer Beltrán and Ratti, exhibiting defeasibility of legal standards”. The former posi-
a high level of scholarly knowledge, in which tion presupposes that moral norms are operating
they survey diferent conceptions and uses of in the background of legal standards and can
defeasibility, present a revealing narrative on re- thus override them when a legal decision would
cent history of the debate and at the same time be unjust. Such a picture quite naturally further
put forward their own suggestion on how most presupposes the falsity of legal positivism (with
plausibly relate notions of defeasibility, validity, a caveat that some of the contributors later ar-
and applicability of legal norms. They start their gue against that). The latter conception is less
discussion by distinguishing several interpreta- problematical in this regard and so Ferrer Beltrán
tions of defeasibility and with a short history of and Ratti present three diferent understandings
the debate, which originated in moral and legal of legal defeasibility of legal norms, namely that
theory, then mostly transgressed into the ield of of Schauer, Alchourrón and Marmor. We cannot
logic and artiicial intelligence just to return to go into details here, so I will just note some of
legal and moral theory again in recent decades. the important insights that they raise regarding
Attempts to understand defeasibility in terms of defeasibility. One of them is that we want – de-
defeasible legal norms are labelled as a “struc- spite advocating some sort of defeasibility – to
ture based account” and a useful distinction be- retain a rather strong role for moral rules, since
tween variously strong theses (all legal norms we do not want them to be completely opaque
are defeasible, some legal norms are defeasible to other considerations (as background defeat-
and none of the norms are defeasible) is made. ers) in a way that every contrary consideration
They also point out that one must start with a could overturn the decision made on the basis of
suiciently strong notion of defeasibility, other- the rule in question. Rules are important to retain
wise one faces an objection that the proposed predictability, stability and constraints on deci-
theory catches nothing really interesting besides sion-makers. Secondly, it seems that defeasibil-
the commonly accepted statement that (at least ity is closely related to a certain notion of a gap.
some) legal rules can have exceptions. In addi- Ferrer Beltrán and Ratti in this regard mention Al-

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 The Logic of Legal Requirements. Essays on Defeasibility 181

chourrón’s interpretation of normative systems, for the norm), authoritative (only ones that com-
within which a normative gap appears when ply with the actual intentions of the lawgiver)
we have no solution for one or more of cases or dispositional (only those that are in line with
that the norm is supposed to cover. Axiological the disposition of the lawgiver to accept them)
gap on the other hand is a gap that appears as criteria for delimiting them. But not only norms
a consequence that a given normative solution themselves could be seen defeasible in this way,
of a case is “considered inadequate, from an axi- but also their criteria of recognition could be
ological point of view, since it is drawn without defeasible. In this sense we can distinguish be-
taking into consideration a property that should tween several possible situations regarding the
be relevant according to a certain set of evalua- relation between such criteria and validity of the
tions, which are external to the normative system legal norm (criteria pose necessary and suicient
under consideration (p. 27)”. They warn against conditions for validity; criteria pose necessary
blurring both notions together, especially from but not suicient conditions for validity; criteria
the point of view of being internal/external to pose suicient but not necessary conditions for
a legal order. Finally, there seems to be a close validity; criteria pose neither necessary nor suf-
relation between notions of defeasibility and icient conditions for validity). We can now see
normal conditions, starting from a preliminary that defeasibility could have at least two difer-
understanding of the defeasible rules as holding ent sources. By distinguishing external (a norm
only for normal cases. This of course opens up N1 is externally applicable to case C, when some
a number of questions related to interpretation other norm N2 provides that N1 in applicable)
and epistemic questions of how one can recog- and internal applicability (norm N1 is applicable
nize that the case at hand falls under normal. to cases of the generic kind that the norm itself
Ferrer Beltrán and Ratti conclude that “[a]t least regulates) we can add a third, distinct one. Now
two main models of interpretation can clearly be there are three diferent situations where defea-
singled out in the discussion of substantive legal sibility arises. (1) A norm N1 is defeasible in the
defeasibility we have sketched so far: a formalist, sense that the criteria of recognition for that
or opaque, model, according to which interpret- norm are defeasible. (2) A norm N1 is defeasible
ers must stick to the literal or prima facie mean- in the sense that its external applicability (N2)
ing of legal sentences (admitted that such a thing is defeasible. (3) A norm N1 is defeasible in the
exists), and an anti-formalist, transparent, model, sense that its normative content is itself defeasi-
which responds to the supposed underlying rea- ble. Ferrer Beltrán and Ratti now point to some
sons of legal regulations (or to the real or coun- really interesting consequences. “The external
terfactual intentions of the lawgiver). The choice defeasibility of a norm N1 afects either its va-
of one of these two models – we submit – is the lidity or its external applicability and is a conse-
key-vault of the phenomenon to which theorists quence of the internal defeasibility of another
(more or less consciously) refer when they talk norm N2 or of the criteria of identiication of the
about “defeasibilism of legal rules (p. 31)”. system. By contrast, the internal defeasibility of a
Next, Ferrer Beltrán and Ratti present their norm N1 afects its internal applicability, i.e. we
own proposal of relationship between defeasi- cannot determine whether a certain case C can
bility and validity that they frame within a very be subsumed under the antecedent of the norm,
useful conceptual analysis of both. In order to since it is not a closed antecedent. [...] In turn, the
present their solution, we must introduce some internal defeasibility of N1 brings about the ex-
of their distinctions. One can start with a ques- ternal defeasibility of the norms derived from it.
tion on what logical consequences of the ex- [...] Finally, we can say that the internal defeasi-
pressed norms are to be considered as a valid bility of a norm is the product of interpretation.
law. If our answer is that all, then we are practical- As a consequence, determining whether N1 is
ly denying defeasibility. One could also answer internally defeasible is a doctrinal question, not
that only some of the consequences are valid a theoretical one. When defeasibility has to do
and appeal either to teleological (only those that with the external applicability of a norm N1, in
comply with the underlying ground or reasons turn, it is also a consequence of an interpretive

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 182 BOOKS

decision, but carried out on another norm – N2 – argue that defeasibility is thus not a property of
which provides on the applicability of the former. rules at all, but a result of a decision on how to
On the contrary, if defeasibility has to do with the treat these rules. It is therefore not a conceptual
validity of a norm, it must be regarded as a con- or logical issue whether law is defeasible, but de-
sequence of taking the criteria of identiication scriptive and prescriptive issue, pointing to how
of the system at hand as defeasible (p. 37)”. On in some existing legal system rules are actually
the basis of this they conclude that one can dis- treated and whether it is good or desirable that
cern three diferent uses of defeasibility in legal they are treated so (given the goals we aim at).
domain. Firstly, one can understand defeasibility In essay 5 Jorge L. Rodríguez argues against de-
as a pragmatic tool of legal interpretation within feasibility of legal rules, mostly on the basis that
legal reasoning. Secondly, defeasibility can be implicit and un-speciiable in advance (incapable
linked with questions of applicability and validity of exhaustive statement) exceptions to a given
of legal norms. Thirdly, one can link defeasibility legal rule would more or less make it impos-
to the notion of criteria of recognition. The intro- sible to carry out any inferences form it. He also
ductory essay is very clear and does justice to the addresses some of the supposed consequences
contributions that follow it, laying out the theo- that this issue has for positivism either being able
retical ield of problems and specifying the limits or not to account for the defeasibility and phe-
for their possible solutions. nomena that surround it and argues that the ar-
Part I continues with the contribution of Car- guments from defeasibility against positivism are
los E. Alchourrón that investigates the already inefective.
mentioned pragmatic defeasibility of legal con- Giovanni Sartor in an exceptionally clear
ditionals in relations to the consequences of that and well structured contribution irst situates
for legal logic (especially the ideal of deductive legal defeasibility inside a more general frame-
organization of law). He argues that despite de- work of defeasible reasoning. He introduces an
feasibility we can retain this deductive ideal and outline of reasoning and reasoning schemata
that the introduction of non-monotonic modes and further distinguishes between what he calls
of reasoning is not necessary since interpreta- conclusive and defeasible reasoning, the irst
tion can do the work of accommodating this one being monotonic (one can always accept
defeasibility inside the system. As a continua- a conclusion from a given premises (reasons),
tion of the debates on these issues Juliano S. disregarding any new premises that one might
A. Maranhão takes a closer look at Alchourrón’s add to the initial set), and the second one being
position and points to some tensions between non-monotonic (sensible to new information).
his basic claims, especially on the qualiication He presupposes that defeasible reasoning sche-
and revision processes as a part of interpretation mata in general is pervasive and mostly due to
(epistemic conception of defeasibility). He ex- the fact that it is needed by us to cope with and
poses the use of the so-called reinement opera- function in an ever changing environment we
tor in sorting out inconsistencies as a source of are situated in (e.g. perceptual inferences, infer-
defeasibility and in accommodating defeasibility. ences based on memory, statistical syllogisms,
In an essay “Is Defeasibility an Essential Property etc.). In particular he claims that legal defeasibil-
of Law” Frederick Schauer argues that global ity is an essential feature of law. One important
(encompassing all of the rules of legal system) thing is to abandon the presupposition that de-
defeasibility (despite being widespread) is best feasible reasoning is in some sense defective or
seen as a merely contingent feature of law that is inadequate and start seeing it as a “natural way
dependent on interpreter or enforcer. He identi- in which an agent can cope with a complex and
ies as a central idea behind defeasibility the “po- changing environment (p. 116)”. Its functions
tential for some applier, interpreter, or enforcer of are to provide for provisional conclusions that
a rule to make an ad hoc or spur-of-the-moment are usable at the time of the adoption of belief
adaptation in order to avoid a suboptimal, inef- or acting intention, to activate inquiry process
icient, unfair, unjust, or otherwise unacceptable, based on searching for defeaters to the initial
rule-generated outcome (p. 81)”. He goes on to conclusion until one reaches a stable point and

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 The Logic of Legal Requirements. Essays on Defeasibility 183

to enable our shared knowledge structures to ing non-defeasible reasoning one would not be
persist over time despite getting new informa- able to engage in producing provisional out-
tion in all the time. Sartor analyses the concepts comes needed in the course of legal inquiry. But
of collision (distinguishing between rebutting is seems like none of the reasons themselves or
and undercutting collision), defeat and reinstate- together would get Sartor what he needs, that is
ment as a helpful way to get a more structured essentially defeasible nature of law itself. Sartor
approach to defeasible reasoning. He rejects the background presuppositions take him to view
suggestion that one could abandon defeasibil- law and legal decision-making as rather extreme,
ity approach in favour of probability based ap- ofering a picture where reasons and reasonings
proach, mainly for the reasons that we as cogni- compete against each other in a more or less un-
tive agents are not very good at assessing and structured manner. By understanding defeasibil-
deriving probabilities and that sometimes (espe- ity and defeasible norms as pervasive he seems
cially in practical context) in makes no sense to to get defeasibility too easily and fails to distin-
employ a probability calculus. Sartor presents a guish between the “soft” and “hard” problem sur-
brief history of the idea of defeasibility in prac- rounding it. That is, by making every legal norm
tical domain (Aristotle, Aquinas, W. D. Ross and that allows for any kind of exception or defeater
Hart). Although the general line of thought is defeasible, the theory looses what is intriguing in
clear, the details of the accounts and justiication the concept of defeasibility. Additionally, Sartor
for merging them into a single stream of thought seems to presuppose some kind of a background
are lacking, especially since both the sources of forces that operate in legal reasoning, since he
their inclinations towards defeasibility vary as often makes appeals telling us which conclusions
well as consequences they draw for the relevant to prefer, what is a successful defence, balance of
ields of inquiry. One can dispute e.g. that Ross reasons, etc. E.g. he states “[f]or determining the
notion of prima facie duty is in any way related relative strength of the arguments [...] we have
to defeasibility, since prima facie duties clearly do to appeal to further arguments, telling us which
not allow for exceptions and what situates Ross one of the contradictory arguments is to be pre-
within the debate on defeasibility is his moral ferred and on what grounds (p. 135)”. Now those
pluralism that results in a system of norms that is background arguments and reasons are either
defeasible in the sense it doesn’t provide us with defeasible or non-defeasible. If defeasible then
a determinate normative solutions for every case. one really runs into already mentioned troubles
As already said when Sartor moves to look closer with at least moderate predictability and stability
at defeasibility in the legal context, he starts with of legal order. If indefeasible then this would go
a presupposition that defeasibility is an essential against Sartor’s ainities to claim that law is es-
feature of law (being either explicitly recognized sentially defeasible.
as in cases of “unless clauses”, explicit excep- Rafael Hernández Marín argues against
tions and presumption or as a consequence of Sartor and other advocates of legal defeasibility
conceptual construction in the sense that legal by ofering a complex argument that supposedly
concepts in general presuppose defeasibility (p. establishes that there is no place for defeasibility
130)). He argues against Alchourrón deductive in legal argumentation at all. Actually, his scep-
axiomatic ideal of law and ofers three diferent tical worries go as far as to deny any plausibility
reasons and arguments against that, but those of employing deontic logic (defeasible and in-
seem not to fully establish the conclusion he is defeasible) in legal reasoning and of employing
trying to make. A irst set of reasons concerns any kind of defeasible reasoning also in ordinary
considerations about the feasibility of non-de- descriptive logic. He starts by noting the “concep-
feasible formulations of legal norms and, even if tual jungle” surrounding the notion of defeasibil-
they would be possible, their usefulness. The sec- ity and goes on to develop his own framework,
ond reason is that non-defeasible formulations within which he identiies two possible interpre-
would preclude sensitivity to new information tations of defeasibility (Alchourrón’s early theory
that become available after a given conclusion. being the main starting point here) using notions
And the last reason is that with merely employ- like literal sense, total sense and truth. According

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 184 BOOKS

to the irst deinition, an ordinary sentence is de- case. Additionally, if we generalize this thesis, it
feasible if a coincidence between its total sense would be impossible to know, in any case of le-
and its literal sense “is a defeasible property, i.e. gal interpretation, what is the total sense of a
an only apparent, but unreal, property of the sen- legal sentence: not only because of the diiculty
tence (p. 138)”. To use a well known example, a of getting to know which would have been the
sentence “If (x is a gas and the temperature of x thought of the legislator had she considered the
rises), then (the volume of x rises).” is defeasible possibility of introducing a speciic exception in
since its total sense contains a possible exception her regulation, but mainly because of the count-
(the pressure of x does not vary). According to less possible exceptions. In short, legal interpre-
the second understanding, a defeasible condi- tation, which consists, as I have mentioned be-
tional is a conditional whose truth is defeasible, fore, of determining the total sense of a legal sen-
i.e. it can be defeated by an exception. He claims tence, would be an impossible task to perform
that because both deinitions are non-equivalent if Alchourrón were right (p. 142)”. Hernández
(therefore opening space for the possibility that Marín then turns to defeasible reasoning, which
the same sentence at the same time being defea- he understands as non-monotonic reasoning;
sible and indefeasible) such theory of defeasibil- what makes arguments defeasible is that the de-
ity as a whole must be abandoned due to its con- ducibility of their conclusion is defeasible, which
tradictoriness. But note that this could only be he in turns interprets as this conclusion being a
an afective objection against a speciic theory plausible consequence of the premises or that
of defeasibility that would harbour both aspects those premises are good enough reasons to be-
and not against legal defeasibility in general. A
lieve the conclusion. Both of these notions lack
similar problem arises when we move from ordi-
precision for Hernández Marín, moreover one
nary to prescriptive sentences or premises, only
has to get rid of the presupposition that stand-
that here the notion of truth gets replaced with
ard and defeasible deducibility are two species
that of efectiveness of legal sentences. Addition-
of the same genus. On the contrary, defeasible
al problem creeps in by raising the question on
deducibility is not a proper logical deducibility
how to ascertain whether a given legal sentence
at all, just as real truth and apparent truth are
is defeasible or not; here we must irst determine
its total sense, which is of course a burden for not both truths, since apparent truth is no truth
interpretation of that sentence. Therefore defea- at all. This goes for ordinary arguments as well
sibility is related to interpretation (and is on the as for mixed (involving at least one prescriptive
other hand unrelated to debates on positivism sentence). Here Hernández Marin introduces his
Hernández Marín claims). Given the proposed general scepticism on deontic logic, which he
deinition of defeasibility in terms of the gap be- bases on the fact that no acceptable deinition
tween literal sense and total sense, Hernández of semantic relation of logical consequences
Marín proposes not to view the whole situation among prescriptive sentences was provided (p.
in terms of the total sense of the defeasible le- 146). Given all the stated problems it is according
gal sentence being the same as literal sense of to Hernández Marín therefore best to abandon
the non-defeasible legal sentence (as a way of the idea of legal defeasibility all together. How-
speciication of the original sentence that would ever, his contribution is especially strong in criti-
include previously implicit exceptions, i.e. “S: Ve- cizing defeasibility-based approaches, but lacks
hicles shall not enter the park” and “S*: Vehicles positive proposals on how to solve the detected
shall not enter the park, except ambulances”), problems. (To be fair Hernández Marín directs
since if the legislator or author of the original the reader to some of his other works for further
sentence S would mean actually the literal sense answers.) It seems that he does not do full justice
of S*, then it would have formulated it as such to to the diferent aspects of the phenomenon of
begin with. This leads to the problem that “the legal defeasibility (like to ones pointed out by
total sense of [S] would depend on whether it is Sartor), and that he presupposes that in the ield
true that the author of this sentence would have of legal argumentation and interpretation some
introduced an exception, had she considered the sort of speciicationist approach will provide us

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 The Logic of Legal Requirements. Essays on Defeasibility 185

with all we want in this regard, bringing us close stances that would represent genuine suicient
to the deductive ideal. conditions for its use. Next, Guastini understands
Part II moves away from these more general defeasibility and axiological gaps as phenomena
issues and focuses on the relationship between related to the level of interpretation and not that
legal defeasibility and interpretation. In essay of normative systems. When some defeasible
8 Pierluigi Chiassoni investigates the relation- norm is defeated and allows for an exception, this
ship between the notions of legal indeterminacy creates a certain gap (in the sense that the case
and defeasibility. He methodically analyses both at hand is indeed regulated by a certain legal
concepts from diferent perspectives (subjects, rule, but we ind such regulation unacceptable
forms, sources, problems, consequences). Within or unsatisfactory and are not ready to accept the
such an approach he identiies eight subjects of particular conclusion). Therefore what emerges is
indeterminacy and, more importantly, four no- an axiological gap and not a genuine normative
tions of indeterminacy – adjudicative, textual, gap since we are not dealing with the absence
normative, and methodological – out of which of the normative regulation of a given ield, but
the latter is the basic form for him and all others with a gap that appeared as a consequence of
are more or less dependent on it. As regarding our interpretation of the norm. Most often de-
defeasibility, he helpfully identiies eleven sub- feasibility and axiological gaps appear due to
jects that defeasibility is predicated to, namely the well-known phenomena of the restrictive in-
facts, beliefs, concepts, norm formulations (legal terpretation of a norm; that is an argumentative
texts), interpretations, norms (rules, principles, technique of distinguishing between diferent
standards), reasonings, positions, arrangements, subsets of diferent kinds of states of afairs sup-
claims, and conclusions. Chiassoni also discusses posedly governed by the same norm. For Guas-
the relations between norm defeasibility and axi- tini, defeasibility and axiological gaps are there-
ological gaps. He concludes with some remarks fore related to the axiological judgments of the
on the relationship between legal indetermi- interpreters of norms. Furthermore, defeasibility
nacy and defeasibility, where he identiies two is not a special characteristic of legal principles; it
predominant positions. The irst one is that in- is not an objective property of those norms that
determinacy and defeasibility are basically one is already there before we start to interpret them.
and the same phenomenon, and that discussion Axiological judgments employed within the in-
on defeasibility collapses into discussion on in- terpretation are thus not the consequence of
determinacy. The second one is that defeasibil- some objective defeasibility of the rule itself or a
ity and indeterminacy are two separate notions genuine, interpretation-independent normative
and that indeterminacy is somehow dependent gap, but the origin or a cause of interpretative de-
on defeasibility. The contribution concludes with feasibility. For Guastini literal interpretation is still
three more speciic theses. (1) Textual indeter- interpretation, so there cannot be any neutral or
minacy may depend on norm defeasibility. (2) value free interpretation (this goes closely in line
Normative indeterminacy may depend on norm with Hernández Marin’s thoughts on literal and
defeasibility. (3) Norm defeasibility depends on total sense). Not only principles, but rules also
methodological indeterminacy (arising out of an can be defeated, and therefore we cannot un-
open and unordered set of tools that are used in derstand the presence of principles in the legal
legal decision-making or when these tools are in system as an origin of defeasibility. “Defeasibility
themselves indeterminate). and axiological gaps simply depend on interpret-
In an essay “Defeasibility, Axiological Gaps, ers’ evaluations, and such evaluations often take
and Interpretation” Riccardo Guastini primarily the form of juristic ‘theories’ – ‘dogmatic’ theses
understands defeasibility as a consequence of framed by jurists in a moment logically previ-
the act of interpretation. The starting point is the ous to interpretation of any particular normative
understanding of a defeasible norm as a norm sentence and independently of interpretation.
that is susceptible to implicit exceptions, which [...] Defeasibility does not pre-exist interpreta-
cannot be explicitly stated in advance, which in tion – on the contrary, it is one of its possible re-
turn means that it is impossible to delimit circum- sults. And interpreters’ evaluations are precisely a

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 186 BOOKS

cause, not an efect, of rules defeasibility (p. 189)”. two essentially unrelated phenomena, but might
Open-texture or vagueness of concepts therefore lead to the same sort of practical consequences
cannot be seen as special sources of defeasibil- in the form of indeterminate outcomes, allow-
ity; they are merely ineliminable characteristics ing authority to make an exception in the par-
of natural languages. “Rules [...] are inert, they do ticular case, ill in the gap or modify or clarify the
nothing: they let themselves be defeated, but do original rule in cases where a more literal read-
not defeat themselves. As beauty is in the eye of ing of the rule would lead to severe injustice or
the beholder, in the very same way defeasibility is absurdity. Daniel Mendonca in an essay titled
not in rules, but in the attitudes of interpreters (p. “Exceptions” puts forward a proposal on how to
190)”. Guastini concludes with an argument that understand exceptions as negative conditions of
if we accept such a view of defeasibility, then in rules. Starting from a view that many conditional
becomes clear that defeasibility cannot be used statements of the form “if A, then B” are often
as an argument against legal positivism, since formed within a presupposed background of
the latter includes merely the thesis that law can conditions that have to be meet, he analyses sev-
be identiied without an appeal to moral evalua- eral diferent forms of exceptions and the way to
tion, and not that moral evaluation cannot igure understand them within the logic of defeasibility.
in the interpretation of law and as such interpre- Legal defeasibility is often linked with interpre-
tation is not identiication of law but a part of the tations of legal norms and framing exceptions
law itself. While Guastini is exceptionally clear in in the light of the interpreter’s appraisal of the
his arguments and examples it seems to operate intentions behind the norms. He concludes that
with a rather narrow understanding of defeasibil- by better understanding of the logical-formal as-
ity at least from the point of view that the plati- pects of exceptions within legal argumentation
tudes related to defeasibility point out that an and interpretation we could gain greater logi-
“exception” to the rule is somehow informed by cal accuracy and clarity. In Chapter 12 Richardo
the rule itself and that the rule fully “survives” this Caracciolo deals with diferent conceptions of
point of meeting an exception. Within his picture defeasibility and speciically argues against the
nothing similar takes place; the interpretation dispositional approach to defeasibility (Alchour-
is narrowed and gap illed by a negative rule or rón) as related to the pragmatic version of defea-
condition. sibility. Appeals to dispositions of the lawgiver (in
Brian H. Bix investigates the relationship the sense of considering that the legislator did
between Hart’s idea of open-texture of concepts not foresee some circumstance C that we see as
and legal defeasibility. He traces the roots of the representing an exception to a given norm, and
notion of open-texture back to Wittgenstein and that had he considered C under this light, he
Waismann, but notes that the original idea was would have introduced it as an exception) brings
far more restricted and that it operated within in more troubles and open questions than clarity
the context of veriicationism, not in the sense of in the notion of defeasibility. He concludes that
actual vagueness of concepts but more related “it is not therefore possible to associate norms to
to the problems associated with the possibility normative formulations considered defeasible,
of vagueness. Hart then broadened this sense inside any conception of normative defeasibility
and also loosened its use as it is evident from which make use of counterfactual analysis of val-
his “No vehicles in the park.” example to cover ue judgements to identify norms. So, normative
ideas about vagueness, and unusual or border- formulations will be not useful to resolve practi-
line cases. Bix then moves to the Hartian notion cal problems, because they will not allow one
of defeasibility of concepts that is framed as a to reach a inal solution. It seems, then, that the
possibility that a given criteria for their use might plausible alternative is to return to Alchourrón´s
get defeated by additional fact thus making the irst proposal about general defeasibility (p. 222)”.
rules and arguments defeasible (where an initial Part III of the collection deals with defeasibil-
conclusion might be warranted but might be ity and diferent conceptions of law, especially in
overruled by addition of other factors). He con- the light of the relationship between law and mo-
cludes that open-texture and defeasibility are rality. We have already indicated some points on

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 The Logic of Legal Requirements. Essays on Defeasibility 187

which the debate about whether full admission ing that law is always morally defeasible, but at
of defeasibility is compatible with legal positiv- the same time reaching the opposite conclusion,
ism arose. The debate continues here. In an essay namely that defeasibility of legal norms poses no
“Legal Defeasibility and the Connection between fatal problems for positivism, and furthermore
Law and Morality” José Juan Moreso argues in that we can even use it to reconcile the divide
favour of the thesis that defeasibility somehow between exclusive and inclusive positivism. He
presupposes a close link of law and morality, es- makes a disanalogy between moral and legal de-
pecially if we understand defeasibility in terms of feasibility and goes on to argue that positivism
there being moral defeaters of legal rules. He use- can accommodate both epistemic and logical
fully distinguishes between diferent versions of defeasibility, and that actually both exclusive and
identiication thesis and between identiication inclusive positivism pointed out several facets of
of law and adjudication. Due to the complexities defeasibility that are important for legal practice
of human or social situations legal rules can of- and our understanding of law.
ten be subject of implicit exceptions. He usefully Next, Bruno Celano in his contribution titled
relates his discussion with that between general- “True Exceptions: Defeasibility and Particularism”
ist and particularist approaches to morality in the returns to the topic of exceptions and its relation
ield of moral theory, where he inds most sym- to defeasibility. He closely relates defeasibility
pathies with so-called thick intuitionism (David with the so-called “identity assumption”, that is
McNaughton, Piers Rawling, Pekka Väyrynen), the assumption that the exceptional case leaves
representing a middle ground between strict the original norm somehow intact. One of the
insistence that morality is completely principled most obvious and straightforward options to ad-
and particularist claim that we can dispense with dress the relationship between norms and excep-
moral principles altogether. Thick intuitionism ar- tions is the speciicationist approach. Every time
gues that moral rules are formulated with thick diferent legal norms conlict and it seems that
concepts (thick properties as a normative bases we will have to make an exception, the proper
of such rules), which cannot be completely de- way to proceed is to conclude that all “we have to
inable and spelled out in non-moral terms and do is specify (that is, suitably restrict the domain
are therefore susceptible to certain defeaters. If of application of) at least one of the norms, or the
legal rules are similarly susceptible to moral de- relevant norm, so that, thanks to the inclusion of
featers, then exclusive legal positivism “is unsuit- further conditions within its antecedent [...] the
able from a conceptual point of view and, from conlict – or the unsatisfactory verdict – eventu-
a normative point of view, there are no good ally vanishes (p. 270)”. Speciication reveals itself
reasons for sustaining ethical positivism (p. 237)”. as the middle and most reasonable way between
Next, Manuel Atienza and Juan Ruiz Manero the pure subsumption model on one hand and
dwell on the similar issue and frame the debate the intuitive balancing of each particular case
within the notion of defeasibility emerging out on the other. But the problem of this approach
of the gap between legal principles and rules (as lies in the in-principle possibility of never being
it is the case in Dworkin’s two-levelled concep- able to specify all the exceptions and thus also
tion of law). Since the underlying level of values the claim that we are merely amending the same
and purposes can defeat the legal rules on the norm seems hollow according to Celano: “Achiev-
surface level (that only establish conditions that ing a fully speciied ‘all things considered’ norm,
are ordinary or typically considered suicient for thereby ruling out the possibility of further, un-
their validity), defeasibility is a genuine feature speciied exceptions (apart from those already
of law in this mentioned sense. They illustrate built into the norm itself) would require us to
this point by focusing on atypical illicit and licit be in a position to draw a list of all potentially
acts and analyse them in terms of (un)lawfulness relevant properties of the kind mentioned. And
and (in)validity. They share Moreso’s view that this, we have seen, is misconceived (p. 276)”. He
such conception of law is in tension with strong instead proposes to look at a further alternative
or exclusive positivism. In Chapter 15 Wilfrid J. approach to defeasibility which regards excep-
Waluchow continues this debate, acknowledg- tions as already implicitly included or provided

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 188 BOOKS

for by the norm. A speciied norm is thus just a sition gets spelled out in more detail, especially
sort of shorthand for a more complex norm that in terms of arguing against the so-called weight-
lies in the background. But this approach fails for theories (ascribing a certain weight to principles
the same reasons since it understands excep- and values when in conlict and then balance it
tions not as real exceptions – not as real holes to reach an overall conclusion) and instead argu-
in the norm – but as some sort of prima facie ex- ing for coherence-theories that appeal to holistic
ceptions that allow for the illing in of the holes. and coherentist interpretation of the application
(In this sense some of the debates on legal de- of principles understood as combined in an all
feasibility really miss their target since they stay embracing coherent system. The last essay in Part
with such prima facie exceptions as a basis for III by María Cristina Redondo is an investigation
defeasibility of norms.) He then proposes that of the relation between reasons for action and
one must accept some sort of particularism in defeasibility. After posing the question whether
order to do proper justice to the (possibility of) reasons for action can be thought of as defeasi-
genuine exceptions. In short, he proposes to un- ble she distinguishes between ontological and
derstand “norms as defeasible conditionals liable epistemic sense of defeasibility. Next, following
to true exceptions, i.e., conditionals such that a very clear elaboration of both views on defea-
the consequence follows, when the antecedent sibility she goes on to argue that – with respects
is satisied, under normal circumstances only”. to reasons for action – a realist view on reasons
This notion of normalcy (normal circumstances) (one that understands facts as reasons for action
is very close to the notions of defeasibility and and not e.g. our beliefs about facts) is not com-
privileged conditions for a norm as developed patible with the ontological defeasibility, that is
by Mark Lance and Maggie Little in moral theory. that if we picture reasons for actions as objective
His contribution is in this sense a really insightful facts then it is impossible that such fact would be
investigation of the defeasibility debate in eth- defeasible. She therefore prefers a constructivist
ics and in legal theory, which is a rare approach, approach to reasons for action that can better
since both spheres of the debate ran quite back accommodate both ontological and epistemic
to back in recent decades, although the targeted dimensions of defeasibility. But her arguments
questions and problems regarding defeasibility are inconclusive. One thing that is left out of the
are analogous along several dimensions. What discussion is that the notion of a reason itself can
remains open is of course how one can spell and be problematic in respect to the ofered analysis
cash out this notion of normalcy. There are sev- of epistemic defeasibility. Jonathan Dancy – as
eral attempts to do that in moral theory but none a moral particularist and a realist about reasons
seems to be fully successful. What is especially (e.g. in his book Practical Reality, 2000) – makes
problematic is that most of these attempts seem it clear that when dealing with defeasibility and
to collapse on an understanding of some sort related phenomena it would be a mistake to say
of indefeasible background normative factors that in a given case the fact that I made a promise
and we lose an interesting sense of defeasibility. to do A is actually not a proper reason for me to
Celano ofers no suggestions on how to over- do A, since what would really constitute a reason
come this issue. Juan Manuel Pérez Bermejo would be a whole set of contributing factors,
also draws from the debate on defeasibility and enablers and absence of disablers (e.g. I made a
particularism in moral theory and starts with the promise to A + this promise was not given under
seemingly opposing intuitions about the nature duress + it’s not immoral + I am able to do A + I
of law that get subsumed under two contrasting have not other important moral obligation that
labels of regularism and particularism. He then would prevent me to do A + the promisee did not
goes on in search for a middle ground position recall her claim + ... ). That doesn’t look any more
that could accommodate both particularistic and as a reason; a reason could simply be the fact
regularistic intuitions and inds it in a version of that I made a promise. The other thing is that one
principilism, which understand legal principles could distinguish between there being reasons
both defeasible and as underlying legal rules that are defeasible and facts about reasons being
and legal arguments. In the conclusion this po- defeasible. It seems that an objectivist about rea-

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 The Logic of Legal Requirements. Essays on Defeasibility 189

sons therefore could accommodate ontological tion to oppose an unjust consequences of a giv-
defeasibility. en rule are at stake and critical relective attitude
In Part IV contributors relect upon the ques- is called for) in these processes, that is deined
tions of defeasibility in adjudication. The debate by the responsibility that comes with the role of
is framed around a central question what role agents and enables them to override a legal rule
does defeasibility play in adjudication and the in cases where that role’s ends (delivering justice)
answers of authors vary signiicantly. All contri- conlict with the prescribed means (legal rules).
butions consider a vast number of actual cases Radical alternatives to this are legalism in the
and procedures in order to back up their argu- form of rule-fetishism and anarchism in the form
ments. In an essay “Legislation and Adjudication” of rule-scepticism. Thus, this forms a basis for his
Fernando Atria lays out some fundamental is- “own idea that law may be best understood as
sues related to defeasibility, legislation and ad- open-ended, defeasible, normative, conditional
judication and presents them with an emphasis propositions, that is in the form ‘if A, then B ought
on the historical development of these ideas. to be, unless...’ (p. 365)”. Defeasibility is not a mere
He criticizes both formalism and rule-scepticism presence of exceptions, since exceptions could
(Hart) for putting too much stress on the “judge always be build into the rule itself; defeasibility is
as an automaton model” of adjudication, disre- connected with a more basic notion of overrides
garding conceptual and institutional dimension (related to consideration of e.g. mercy, justice,
of defeasibility. He advocates an understanding equity, purpose, or rights). Tur points to several
of legislation and adjudication within a broad cases of such injustice based overrides to con-
idea that we must make “the application of ab- clude that such defeasibility poses a challenge
stract, legislated rules probably sensitive to the to exclusive legal positivism if the latter is under-
particularities of the case at hand without hav- stood as advocating a ixed conception of rules,
ing to pay the price of denying the authority of speciically because of overrides and their being
law (p. 332)”. While legislation procedure brings in conlict with the rule of recognition – the latter
forward legal rules that are based on relection can strive to include more and more such sources
on what would best relect the interest of eve- of defeasibility and recognize them as parts of
ryone involved in typical cases, in adjudication the law (a diicult task given open-endedness
the judge is not limited to such general relec- of such sources) or rest its case with that it only
tion, but must be responsive to the particulari- identiies some but not all relevant legal sources.
ties of the case at hand, take into consideration A defeasibilist theory of law is therefore “descrip-
all relevant elements, at the same time applying tively accurate, normatively appealing, methodo-
the law and administrating justice owned to the logical precept claiming only that ‘law is best rep-
citizen in light of the full relection of her dignity. resented, understood, and taught in the form of
Richard H. S. Tur investigates the adjudication open-ended, defeasible, normative conditional
from the perspective that legal rules are typically propositions’(p. 375)”. However, within such a
defeasible, which means that they are hardly ever model there remains an open question of how
formulated in a way that would be “just right”, to account for knowledge in case of such open
therefore defeasible in the sense that they open “unless...” principles. Jonathan R. Nash points to
possibilities for “rule-generated injustice”. This the vast body of evidence that shows that in the
claim is descriptive and not a conceptual truth sense of defeasibility that is related to evolved
and does not mean that we can establish the portions of the existing legal systems one can
one and only absolute legal theory that should ind so-called substantial indefeasibility that ena-
inform adjudication and our attitudes towards bles law to avoid undermining its legitimacy and
law and legal rules in general. On the other hand turning into “transcendental nonsense”. He use-
Tur does see a prescriptive element in this that in fully distinguishes between four conceptions of
adjudication we should utilize or respect defeasi- defeasibility pointing out how context-sensitive
bility more often and more openly. He starts with defeasibility is and that diferent conclusion
the recourse role of agents (especially judges, could easily be reached about its nature, preva-
but also lawyers and citizens alike when an ac- lence and consequences. He opts for the concep-

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 190 BOOKS

tion that relates defeasibility to a developed and It nicely manages to relate this debate to many
persisting legal system in which rules have their other ields of legal theory and legal philosophy,
cores established and major legal concepts are as well as to ields like general theory of norma-
matured. Even within such a system there will tivity, ethics and moral theory, epistemology,
be some cases that are hard to decide due to the logic and legal argumentation, and philosophy
open-textured nature of legal concepts and uni- of language. The essays included are informative,
versal assertions. Nevertheless such cases can be engaging, and interesting. The collection as a
seen in the light of development or evolution of whole ofers some nice opposing views and a viv-
those concepts and not as defeasance. He then id debate among diferent positions takes place.
ofers evidence from US jurisprudence to show There is an extensive overlap in the debate; the
that this is the most plausible view on defeasibil- contributors clearly dwell on the same sources
ity given actual legal systems. Bruce Chapman in of the defeasibility debate, also supplementing
his contribution “Defeasible Rules and Interper- those sources with a variety of other sources from
sonal Accountability” investigates the diferences diferent areas that provide a rich background
between common law process that is related to for central problems discussed. There is some
defeasible rules and a single stage summary rule. debate on questions of defeasibility in moral
In the former case possibility of engaging with theory, but in most cases (with a few exceptions)
arguments and claims of the other party open this debate is only marginally covered or covered
up a space of responsibility not towards some just on its surface. The collection will certainly be-
abstract idea of moral facts in the world, but come a required reading for all interested in legal
towards what claims can justiiably be made in theory and argumentation, as well as legal schol-
the light of authority of law establishing a kind ars in general and philosophers working within
of shared rationality and joint accountability. This the ields of normativity and ethics alike. As the
brings him back to the debate about defeasibility majority of topics and problems are appropriate-
and positivism in a way that interestingly points ly introduced and explained in most essays the
to positivism as the winning side in the debate reading is clearly accessible to students as well.
with antipositivism. The editors did a very good job in organizing and
In conclusion, the book The Logic of Legal introducing the contributions. So at the end I can
Requirements: Essays on Defeasibility is a compre- only recommend dwelling into this sophisticated
hensive collection of essays that cover most of and challenging discussion on defeasibility that
the aspects of the debate on legal defeasibility. the book ofers.

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