True Exceptions: Defeasibility and Particularism
ESSAYS ON LEGAL DEFEASIBILITY, J. Ferrer Beltrán& G. B. Ratti, eds., Oxford University Press, 2010
37 Pages Posted: 12 Feb 2011
Date Written: August 1, 2008
Sometimes, kinds of cases which do in fact fall under the antecedent of a conditional norm are reckoned recalcitrant. I.e., although they fall under the antecedent of the norm we do not wish to allow the consequence to follow. In such cases, we sometimes say that we are abandoning, or discarding, the norm. We concede, that is, that the alleged norm was wrong (or, if you wish, that it was no norm at all). At other times, however, it is claimed that the norm is a defeasible one. Granted, the case at hand is one of those in which the norm is defeated; but this, it is implied, does not amount to a wholesale abandonment of the norm itself. Being defeasible, the norm somehow survives the impact of such recalcitrant cases. Though somehow revised, amended, qualified, the norm, it is assumed, remains in place: it is still the same norm.
I call this ‘the identity assumption’. The identity assumption is, I submit, part and parcel of the notion that some norms are defeasible ones.
In this paper, I challenge the identity assumption. I challenge it by reviewing, and rejecting, one of the main ways in which it can be substantiated, namely, a specificationist strategy for dealing with norm conflicts and inappropriate normative verdicts (sections 2 and 3). This leads me to taking a stand in the generalism vs. particularism debate (section 4). Rejection of the identity assumption leads, when conjoined to an awareness of the phenomena underlying defeasibility claims, to a version of particularism.
Does this particularist stance necessarily involve the rejection of any normative generalization? The answer to this question, I argue, turns on whether some sense can be made of the notion of a kind of case being ‘normal’ (section 6). Here, a second version of the identity assumption may perhaps be endorsed, thus reviving the defeasibilist project. At the heart of defeasibility claims, so understood, is the idea that norms may be shot through with true, as opposed to merely prima facie, exceptions (section 5).
Keywords: Defeasibility, Legal Reasoning, Particularism, Generalism, Norms
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