
Contents
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A. Introduction A. Introduction
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B. ‘Defeasibility’ B. ‘Defeasibility’
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C. The legal defeasibility of legal standards C. The legal defeasibility of legal standards
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1. Schauer’s conception of the defeasibility of legal rules 1. Schauer’s conception of the defeasibility of legal rules
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2. Alchourrón’s views on the defeasibility of legal standards 2. Alchourrón’s views on the defeasibility of legal standards
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3. Marmor on defeasibility and legal interpretation 3. Marmor on defeasibility and legal interpretation
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D. Defeasibility and legal validity D. Defeasibility and legal validity
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E. Validity, applicability, and defeasibility: a proposal E. Validity, applicability, and defeasibility: a proposal
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F. Some final remarks F. Some final remarks
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1 Defeasibility and Legality: A Survey
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Published:September 2012
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Abstract
This chapter analyzes recent trends in legal logic and legal theory and provides a general reconstruction of the debate on legal defeasibility. The chapter is organized as follows. The chapter first gives a brief characterization of the concept of ‘defeasibility’ in general and of ‘legal defeasibility’ in particular. The chapter is then looks to a substantive analysis of the defeasibility of legal standards. It then provides an overview on the question of whether it is meaningful to assert that the criteria of identification of a legal order are defeasible and, if so, what the repercussions on the validity of legal standards are and their possible relations to the applicability of legal standards. The next section of the chapter elaborates on the distinction between validity and applicability of legal norms in light of defeasibility, and proposes a novel distinction between internal and external defeasibility of legal standards, based on the difference between the defeat of the normative content of a legal standard and the defeat of its applicability or validity. The final section briefly presents some possible future applications of the analytical tools proposed in the chapter.
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