Is Defeasibility an Essential Property of Law?

LAW AND DEFEASIBILITY, J. Ferrer, C. Ratti, eds., Oxford University Press, 2010

25 Pages Posted: 22 May 2009  

Frederick Schauer

University of Virginia School of Law

Date Written: October 12, 2008

Abstract

In most modern legal systems, legal rules are widely understood as defeasible, in the sense that the prescriptions of the legal rule may legitimately be overridden or otherwise cancelled when those prescriptions appear to generate substantially erroneous results. As a result, it is common for commentators, including H.L.A. Hart and Richard Posner, to treat the defeasibility of legal rules as an essential feature of rules or an essential feature of law. But defeasibility is in important ways in tension with the goals of the rule of law, and so although there may be good reasons for a legal system to treat some or all of its rules as defeasible, there are also good reasons for refusing to do so. And so long as this is the case, it is a mistake to treat legal defeasibility as essential to law, for doing so both makes a mistake about the nature of law and deprives institutional designers of the advantages that may sometimes come from non-defeasible rules.

Suggested Citation

Schauer, Frederick, Is Defeasibility an Essential Property of Law? (October 12, 2008). LAW AND DEFEASIBILITY, J. Ferrer, C. Ratti, eds., Oxford University Press, 2010 . Available at SSRN: https://ssrn.com/abstract=1403284

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

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