Law Games: Defeasible Rules and Revisable Rationality
38 Pages Posted: 30 Jun 2008
Date Written: June, 26 2008
In this paper I try to argue that the special sort of structure that links legal rules to their exceptions, namely, the structure of defeasibility, provides an account of rule-based decision making which is not exactly equivalent to rule-bound decision making, that is, to invariably following the rules. While defeasibility provides conceptual space for the categorical guidance of rules, it also allows for their non-absolute character, or their revision in the face of countervailing factors.
I have also argued that something like a defeasible conception of rationality is what is required for the theory of games. What is needed there is a conception of rationality that, like rules, is sufficiently strong to provide some prima facie guidance for conduct at various points of choice, while at the same time not so strong as to preclude (empirically or logically) the possibility of being at those points of choice at all.
Both legal rules and the rules of rationality are neither wholly descriptive nor wholly prescriptive in nature. In this they are quite different from both scientific laws, which are taken to provide descriptions of what `is`, and moral laws, which are thought to provide prescriptions for what `ought` to be. Both legal rules and the rules of rationality seem to bridge this is-ought divide. It should not be surprising, therefore, that legal rules and the rules of rationality might have a common structure, and that this structure, a structure that needs to accommodate both regularity and (an independent) particularity, might be provided by the concept of defeasibility.
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