The Logic of Legal Requirements Essays on Defeasibility

by Ferrer Beltran, Jordi; Battista Ratti, Giovanni

• ISBN13: 9780199661640
• ISBN10: 0199661642
• Format: Hardcover
• Copyright: 2012-11-08
• Publisher: Oxford University Press

Summary

When a legal rule requires us to drive on the right, notarize our wills, or refrain from selling bootleg liquor, how are we to describe and understand that requirement? In particular, how does the logical form of such a requirement relate to the logical form of other requirements, such as moral requirements, or the requirements of logic itself? When a general legal rule is applied or distinguished in a particular case, how can we describe that process in logical form? Such questionshave come to preoccupy modern legal philosophy as its methodology, drawing on the philosophy of logic, becomes ever more sophisticated.This collection gathers together some of the most prominent legal philosophers in the Anglo-American and civil law traditions to analyse the logical structure of legal norms. They focus on the issue of defeasibility, which has become a central concern for both logicians and legal philosophers in recent years. The book is divided into four parts. The first section is devoted to unravelling the basic concepts related to legal defeasibility and the logical structure of legal norms, focusing on the idea that law, or its components, are liable to implicit exceptions, which cannot be specified before the law's application to particular cases. Part two aims to disentangle the main relations between the issue of legal defeasibility and the issue of legal interpretation, exploring the topic of defeasibilityas a product of certain argumentative techniques in the law. Section 3 of the volume is dedicated to one of the most problematic issues in the history of jurisprudence: the connections between law and morality. Finally, section 4 of the volume is devoted to analysing the relationships betweendefeasibility and legal adjudication.

Author Biography

Jordi Ferrer Beltran is professor of Philosophy and Director of the Chair in Legal Culture at the University of Girona (Spain). He graduated in Law at the Autonomous University of Barcelona, and has a PhD in legal philosophy from the University 'Pompeu Fabra' (Barcelona).

Giovanni Battista Ratti is lecturer in Legal Philosophy in the University of Genoa (Italy). He graduated in law at the University of Genoa in 2002, and got a PhD in Legal Philosophy from the University of Milan (2006). He has been visiting professor in the Universities of Girona (Spain), 'Pompeu Fabra' of Barcelona (Spain), and Nacional de Mar del Plata (Argentina). He was awarded a Canadian Government Research Scholarship in 2004-2005, and a Spanish Government 'Juan de la Cierva' Fellowship in Law (2008-2011).

Table of Contents

Jordi Ferrer Beltrán & Giovanni Battista Ratti: Legal Defeasibility: An Introduction
Part I: General Features of Defeasibility in Law and Logic
1: Jordi Ferrer Beltrán & Giovanni Battista Ratti: Defeasibility and Legality: A Survey
2: Carlos E. Alchourrón: On Law and Logic
3: Juliano S. A. Maranhão: Defeasibility, Contributory Conditionals, and Refinement of Legal Systems
4: Frederick Schauer: Is Defeasibility an Essential Property of Law?
5: Jorge L. Rodríguez: Against Defeasibility of Legal Rules
6: Giovanni Sartor: Defeasibility in Legal Reasoning
7: Rafael Hernández Marín: Defeasible Properties
Part II: Defeasibility and Interpretation
8: Pierluigi Chiassoni: Defeasibility and Legal Indeterminacy
9: Riccardo Guastini: Defeasibility, Axiological Gaps, and Interpretation
10: Brian H. Bix: Defeasibility and Open Texture
11: Daniel Mendonca: Exceptions
12: Ricardo Caracciolo: Acts, Normative Formulations, and Defeasible Norms
Part III: Defeasibility and the Conceptions of Law
13: José Juan Moreso: Legal Defeasibility and the Connection between Law and Morality
14: Manuel Atienza and Juan Ruiz Manero: Rules, Principles, and Defeasibility
15: W. J. Waluchow: Defeasibility and Legal Positivism
16: Bruno Celano: True Exceptions: Defeasibility and Particularism
17: Juan Manuel Pérez Bermejo: Principles, Conflicts, and Defeats: An Approach from a Coherentist Theory
18: María Cristina Redondo: Reasons for Action and Defeasibility
Part IV: Defeasibility and Adjudication
19: Fernando Atria: Legislation and Adjudication
20: Richard H. S. Tur: Defeasibility and Adjudication
21: Jonathan Remy Nash: Legal Defeasibility in Context and the Emergence of Substantial Indefeasibility
22: Bruce Chapman: Defeasible Rules and Interpersonal Accountability
Legal Defeasibility: An Introduction, Jordi Ferrer Beltran & Giovanni Battista Ratti
Part I: General Features of Defeasibility in Law and Logic
1. Defeasibility and Legality: A Survey, Jordi Ferrer Beltran & Giovanni Battista Ratti
2. On Law and Logic, Carlos E. Alchourron
3. Defeasibility, Contributory Conditionals, and Refinement of Legal Systems, Juliano S. A. Maranhao
4. Is Defeasibility an Essential Property of Law?, Frederick Schauer
5. Against Defeasibility of Legal Rules, Jorge L. Rodriguez
6. Defeasibility in Legal Reasoning, Giovanni Sartor
7. Defeasible Properties, Rafael Hernandez Marin
Part II: Defeasibility and Interpretation
8. Defeasibility and Legal Indeterminacy, Pierluigi Chiassoni
9. Defeasibility, Axiological Gaps, and Interpretation, Riccardo Guastini
10. Defeasibility and Open Texture, Brian H. Bix
11. Exceptions, Daniel Mendonca
12. Acts, Normative Formulations, and Defeasible Norms, Ricardo Caracciolo
Part III: Defeasibility and the Conceptions of Law
13. Legal Defeasibility and the Connection between Law and Morality, Jose Juan Moreso
14. Rules, Principles, and Defeasibility, Manuel Atienza and Juan Ruiz Manero
15. Defeasibility and Legal Positivism, W. J. Waluchow
16. True Exceptions: Defeasibility and Particularism, Bruno Celano
17. Principles, Conflicts, and Defeats: An Approach from a Coherentist Theory, Juan Manuel Perez Bermejo
18. Reasons for Action and Defeasibility, Maria Cristina Redondo
Part IV: Defeasibility and Adjudication
19. Legislation and Adjudication, Fernando Atria
20. Defeasibility and Adjudication, Richard H. S. Tur
21. Legal Defeasibility in Context and the Emergence of Substantial Indefeasibility, Jonathan Remy Nash
22. Defeasible Rules and Interpersonal Accountability, Bruce Chapman