In this paper the author presupposes Robert Alexy’s classification of legal norms, which distinguishes between principles and rules. It is held that the defeasibility is a feature of the latter type of norms, rather than the former. The defeasibility is defined as the admissibility of inserting new exceptions in the operative conditions of a norm. The author argues that a strict distinction between “principles” and “rules” is needed in order to understand how contra legem decisions can be justified in contemporary democratic states. If every rule can be described as the result of a balancing of legal principles undertaken by the legislator, and if it is not possible to foresee all the situations of application of every legal rule, then it is possible that a principle not previously considered by the legislator provides a reason for introducing an exception in a particular legal rule, without undermining its validity and general applicability. With those considerations in mind, the author attempts to develop a framework for analyzing contra legem decisions and to determine the argumentative steps that need to be taken when one is arguing against the wording of a statutory provision.
|Translated title of the contribution||Principles, rules and defeasibilty: the problem of 'contra legem'|
|Title of host publication||Teoría jurídica y decisión judicial|
|Editors||Pablo Bonorino Ramírez|
|Place of Publication||Madrid, Spain|
|Number of pages||29|
|Publication status||Published - 2010|
- Reduction of Statutes