Regeln, Prinzipien und Defeasibility

Title data

Bäcker, Carsten:
Regeln, Prinzipien und Defeasibility.
In: Rechtsphilosophie. Vol. 8 (2022) Issue 1 . - pp. 81-95.
ISSN 2364-1355
DOI: https://doi.org/10.5771/2364-1355-2022-1-81

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Abstract in another language

Distinguishing rules and principles presupposes a criterion as a means not only to identify rules and principles but also to underscore their differences. In this essay, the notion of defeasibility will be presented as such a criterion. Defeasibility shall be understood as the capacity to accommodate exceptions. Rules, in general, have exceptions. These exceptions cannot be listed conclusively, owing to the fact that the circumstances giving rise to cases in the future are unknown. Thus, legal rules always exhibit the capacity to accommodate exceptions, that is, they are defeasible. Contrariwise, principles as optimization commands do not accommodate exceptions in this sense. Rather, the circumstances of future cases along with other conditions, for example, competing principles, are already implied in the concept of optimization and are, therefore, integral to applying the principle itself. This is to say that optimization is necessarily relative to all the circumstances at hand. Therefore, in order to apply a principle, one has to optimize – and thereby necessarily take into account all of the circumstances at hand. There cannot, then, arise any exception in applying a principle. Principles, in other words, are not defeasible. The essay concludes with an explanation of the distinct prima facie-character of rules, and of principles, again by appeal to the notion of defeasibility, along with the proposal of a threefold conceptual distinction that offers some additional clarity where the concept of a principle is concerned.