Repository | Book | Chapter

This paper analyses¹ the claim that legal reasoning is defeasible, which is indeed a hallmark of some major contributions to the theory of legal reasoning in recent times. Before addressing the question of what kind of logical tools are needed to formalize defeasible reasoning, it must be explained why legal reasoning is supposed to be defeasible in the first place. Some arguments to this effect are taken into account (having to do with the allocation of burdens of proof in legal procedures. reasoning with incomplete information and the proper way of individuating norms), but it is held that none of them really proves that legal reasoning cannot be reconstructed as a deductive inference. The strongest argument to justify the claim that legal reasoning is defeasible seems then to be that all legal norms turn out to be defeasible: but here this argument is disputed, trying to show that it would lead us to embrace either wholesale indeterminacy or "legal particularism", which is criticised as an untenable form of conceiving legal justification. Finally, it is suggested that there is indeed some limited sense in which it could be said that legal reasoning is defeasible (having to do with the idea that justification in law is a matter of coherence), but it is not grounded on the possibility that legal norms themselves be defeasible as well, and especially it does not call in question the subsumptive character of legal justification.

DOI: 10.1007/978-94-017-2702-0_17

Full citation: