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Studies in Legal LogicLaw and Defeasibility

Studies in Legal Logic: Law and Defeasibility Chapter 1 1. INTRODUCTION During the last few decennia quite a bit of literature has been published about so-called defeasible reasoning in the law. Nevertheless, the question what this defeasibility precisely amounts to has received scarce attention. Intuitively, the defeasibility of legal reasoning is a characteristic of the law or of legal reasoning and its understanding would be an understanding of what goes on in the law. Logical systems, such as non-monotonic logics, would only be means to capture a phenomenon that exists independently of these systems. Recently, the question whether legal reasoning is really defeasible has been raised with some urgency. It seems therefore time to pay systematic attention to the nature of defeasibility in general and to the relevance of defeasibility for the law in particular. Another topic that deserves attention is whether the analysis of legal reasoning, assuming that it is defeasible, requires the use of some non-monotonic logic. It has recently been argued that it does not. The structure of this chapter is as follows: First I will try to pin down the notion of defeasibility and in that connection I will distinguish between five E.g. Raz 1975, Gordon 1986, Schauer 1991, MacCormick 1995, Prakken http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Studies in Legal LogicLaw and Defeasibility

Part of the Law and Philosophy Library Book Series (volume 70)
Studies in Legal Logic — Jan 1, 2005
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Publisher
Springer Netherlands
Copyright
© Springer 2005
ISBN
978-1-4020-3517-3
Pages
7 –32
DOI
10.1007/1-4020-3552-7_2
Publisher site
See Chapter on Publisher Site

Abstract

Chapter 1 1. INTRODUCTION During the last few decennia quite a bit of literature has been published about so-called defeasible reasoning in the law. Nevertheless, the question what this defeasibility precisely amounts to has received scarce attention. Intuitively, the defeasibility of legal reasoning is a characteristic of the law or of legal reasoning and its understanding would be an understanding of what goes on in the law. Logical systems, such as non-monotonic logics, would only be means to capture a phenomenon that exists independently of these systems. Recently, the question whether legal reasoning is really defeasible has been raised with some urgency. It seems therefore time to pay systematic attention to the nature of defeasibility in general and to the relevance of defeasibility for the law in particular. Another topic that deserves attention is whether the analysis of legal reasoning, assuming that it is defeasible, requires the use of some non-monotonic logic. It has recently been argued that it does not. The structure of this chapter is as follows: First I will try to pin down the notion of defeasibility and in that connection I will distinguish between five E.g. Raz 1975, Gordon 1986, Schauer 1991, MacCormick 1995, Prakken

Published: Jan 1, 2005

Keywords: Belief Revision; Legal Reasoning; Procedural Rule; Deductive Logic; Defeasible Reasoning

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