Abstract

Defeasible rules are said to allow for the following two-staged sequence, viz., that p → q and yet p & r → not-q. This is puzzling because in the logic of conditionals the sufficiency of p for q cannot normally be undermined if one adds to the antecedent a further proposition r. Critics argue that the better approach to comprehending defeasibility is explicitly to represent the limiting factor r in a single-stage articulation of the rule, viz., as p & not-r → q. This is a more complete statement of the rule; where the old rule announced, confidently and without qualification, that in circumstances or class of cases p consequence q follows, the new rule admits from the outset that q only follows if we add the qualifier that limits the antecedent circumstances to the smaller class of cases p & not-r. This is not only more complete, the critics argue, it is also a more accurate or truthful statement of the rule. The rule p → q, articulated at the first stage of the defeasible process, is only a pretender encountered along the way to this more complete truth. In this paper I show how, and why, contrary to the critics, the process of private law adjudication supports the multi-staged structure and representation of defeasible legal rules. What matters when one party makes a claim against another party is not so much that the claim is true (or even that it is advanced as a legitimate claim under the rule that is most likely to be true), but rather that the claim is of the sort that the party can justifiably say is true. The latter, at least, is what carries the plaintiff past the initial burden of proof, and what calls for the defendant to reply if the plaintiff is not to carry the day. I illustrate the argument by way of the court’s reluctance in a tort case to entertain a purely statistical basis for a plaintiff’s claim that the defendant has caused her injury. Rather, the court will insist on direct evidence that appears to arise out of the particular circumstances of the case as the plaintiff alleges them to be, and even if, as a purely statistical matter, the latter sort of claim is less likely to be true than the claim grounded in pure statistical likelihood. I relate this argument for defeasible rules (and against rules that are more truthful) to some important arguments offered by the philosopher Stephen Darwall in his recent book The Second Person Viewpoint. Private law’s defeasible rules, I argue, capture the special respect (and interpersonal accountability) that attaches only to rights arising out of “second personal” claiming (and counterclaiming) and which are not realizable merely as a matter of “third personal” (moral) truth.