Argumentation 35 (3):409-434 (2021)

Abstract
The phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned.
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DOI 10.1007/s10503-020-09544-w
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References found in this work BETA

Taking Rights Seriously.Ronald Dworkin (ed.) - 1977 - Duckworth.
Literal Meaning.François Recanati - 2002 - Cambridge University Press.
Taking Rights Seriously.Ronald Dworkin - 1979 - Ethics 90 (1):121-130.
Defeasible Reasoning.John L. Pollock - 1987 - Cognitive Science 11 (4):481-518.
Legal Reasoning and Legal Theory.Neil MacCormick (ed.) - 1978 - Oxford University Press.

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