THE DEFEATABILITY AND THE LIMITS OF POSITIVISM LEGAL

Abstract

Th e problem of defeasibility is, according to the authors, a part of the general problem of the relationship between different demands: those arising from legal regulations seen as directives regarding conduct and those arising from the very values and ends that these directives serve.

To that end, an analysis of the problem requires going beyond the vision of Law as held by hard, exclusionary positivism, and assuming an image of the regulative dimension of Law as a two-tier structure, just as mainstream contemporary Law theory has done. There is a tension between the two tiers: regulations, on one level, and their underlying principles or reasons, on the other.

A particularly interesting example of this tension between regulations and principles arises in relation to what the authors themselves have called, in earlier works, “atypical wrongs”. These include as much general wrongs produced through analogy as those covered by forms of abuse of rights, abuse of law and détournement de pouvoir. These are examples not simply of defeasible arguments or premises but of the institutionalisation of defeasibility in Law. They are forms of reasoning predisposed by the system to facilitate decision-making and make it more predictable; decision-making in contexts in which grave anomalies in values can only be avoided if the solution off ered by the regulation, under which the case is subsumed from the start, is ignored.