The Nature of Law: Contemporary Perspectives

Activity: Participating in or organising an event typesParticipation in conference

Description

'Unless' Abstract: In his 1949 discussion of ‘defeasible’ judicial decisions, HLA Hart claimed that the circumstances on which such decisions depend cannot be specified by a set of necessary and sufficient conditions: no necessary conditions, he said, are ‘always’ sufficient. Some have since maintained that Hart was right, and that in order properly to represent exceptions (‘defeaters’) a non monotonic account of legal reasoning is needed. Some have said, on the contrary, that any exception can simply be incorporated, as a negative condition, as part of the rule itself. In this paper, I put forth an elementary proof-based account of defeaters, and suggest that both sides are mistaken. I defend three main claims: (a) defeaters are not reducible to necessary or sufficient conditions (positive or negative) of correctly made judicial decisions; (b) Hart’s claim is not implied by (a); and (c) Hart’s claim is wrong.
Period12 May 2011
Event typeConference
LocationHamilton, Canada