Manuel Atienza

Defeasibility and Balancing

Introduction

Defeasibility and balancing. Explore defeasibility & balancing in law. Understand how legal systems recognize implicit exceptions & resolve complex cases to achieve just outcomes in constitutional states.

Abstract

"Defeasibility" and "balancing" are expressions introduced in recent times to deal with longstanding legal phenomena, which in the context of the constitutional state acquire a special prominence. What is at issue, in fact, is the necessity to recognise exceptions implicit in the norms, in order to provide the legal system with the flexibility needed to maximise the chances of finding a correct—just—answer without abandoning the legal system; and (which to a large extent is another aspect of the same phenomenon) to resolve difficult cases (those for which there is no predefined rule, but only principles) argumentatively, by resorting to a procedure, balancing, the use of which does not necessarily imply an exercise in arbitrariness, although it does involve certain risks that recommend a prudent and limited use of this resource. The last part of the paper summarises the ideas that legal theorists and practitioners should bear in mind in order to understand and make proper use of these two controversial but indispensable notions.

Review

The paper "Defeasibility and Balancing" proposes a timely and pertinent examination of two critical legal concepts that have gained particular prominence within the constitutional state. The abstract clearly sets the stage by identifying defeasibility and balancing as modern expressions for long-standing legal phenomena, essential for providing the legal system with the necessary flexibility to achieve just outcomes. The authors intend to explore how legal systems can adapt and remain just without abandoning their inherent structure, focusing on the implicit exceptions within norms and the argumentative resolution of difficult cases. The core of the paper, as outlined, delves into the dual necessity of recognizing implicit exceptions within norms (defeasibility) and resolving complex cases argumentatively through balancing. Defeasibility is presented as crucial for maximizing the chances of finding a correct answer, ensuring the legal system's adaptability and pursuit of justice. Concurrently, balancing is explored as a procedural mechanism for addressing situations where predefined rules are absent, and only principles exist. The abstract highlights the paper's nuanced perspective, acknowledging the inherent risks of balancing while asserting that its judicious application does not necessarily equate to arbitrary decision-making. The paper concludes by summarizing key insights intended to guide legal theorists and practitioners in their understanding and application of these "controversial but indispensable notions." This promises a practical and theoretical contribution, offering a framework for responsible engagement with defeasibility and balancing. While the abstract does not detail the specific frameworks or examples provided, it strongly suggests a nuanced argument for their prudent and limited use, acknowledging their risks while affirming their necessity. Overall, the paper appears to be a valuable contribution for anyone grappling with the inherent tensions between legal certainty and the pursuit of justice in contemporary legal systems, providing a thoughtful exploration of how flexibility can be integrated without undermining the rule of law.

Full Text

Comments

You need to be logged in to post a comment.