Exceptuando. Teorías sobre la derrotabilidad en la teoría del derecho

Abstract

The objective of the present investigation is to explain that when the law enforcers defeat a norm they may be carrying out one of these two operations: i) they modify the internal applicability of a norm (either by restrictive corrective reinterpretation of a provision or by becoming aware of more specifications of the individual case under analysis); or ii) they deprive a norm of its external applicability. Along with this proposal, I will argue that between the two types of understanding of defeasibility there is to some extent a common language that allows to express the way of presenting and solving the problems about which they theorize: the language of preferences. This is due to the fact that it enables the clarification of preference relations between possible meanings within an interpretation process and preference relations between norms as a means of resolving normative inconsistencies. To achieve this goal, I will conduct a conceptual analysis of the main theories of defeasibility, which is divided into five chapters. In the first chapter, I will conduct an analysis of the different meta-theoretical possibilities available in the literature to consider the different ways of presenting the concept of defeasibility in legal theory. I will also propose a classification based on the different meanings of the term "applicability". If we consider the difference between internal and external applicability, we can distinguish between theories of modification of internal applicability and actions that cause the loss of external applicability. The theories that conceptualize defeasibility as a modifying internal applicability I have called "theories of internal defeasibility". I include here those approaches that use this notion to consider some kind of action (performed by an executor of the law) of variation in the deontic status of a particular action performed under certain circumstances. There are two types of legal acts: (i) as a restrictive corrective reinterpretation by which, in the course of an interpretative process, the person applying the law decides to attribute to a provision a meaning which, by comparison, is less extensive than the prima facie meaning (which I call "normative internal challengeability"); or ii) as a variation of the available information on the content of the individual case analyzed, so that we initiall assume that an individual case is an instantiation of a norm, but after modifying our beliefs about its composition, we recognize what is not subsumed in the rule in question (what I call "factual internal contestability"). The theories that conceptualize defeasibility as the loss of external applicability I have called "theories of external defeasibility". I include here those approaches that use this term to explain the actions (performed by an executor) to solve a normative conflict. Within the framework of these theories, the cases are clarified in which a legal practitioner decides to create a criterion of preference between two norms, so that one of the two norms is no longer externally applicable (losing the obligation to use it to justify its institutional decision), without this implying a modification of its internal applicability or a modification of the description of the individual case. In the second chapter I will analyze the theories of countervailability proposed by the interpretation theory. I will argue that from this approach, defeasibility has been understood as a way of explaining what an enforcer of the law does when he decides to change the normative qualification of a type of individual case. To this end, all these approaches from different types of legal interpretation present the process of identifying a meaning of a provision, a negative assessment of that meaning because it does not contain a distinction that it should have contained, and the choice of another meaning that contains the distinction under consideration should be included. In short, they all intend to present a restrictive corrective reinterpretation process. In the third chapter I will analyze the theories of contestability proposed by the theory of the structure of norms. I will argue that, from this approach, defeasibility has been understood in two ways: i) as a way of describing the history of norms, taking into account the effects of incorporating new information into a decision-making process; and ii) as a way of understanding a kind of conditional norm where the history is composed of contributing conditions for consequence. In the fourth chapter I will analyze the theories of defeasibility proposed from the theory of normative conflicts. I will argue that from this approach, defeasibility was understood in two ways (complementary to each other): i) as a way to explain the outcome of a normative conflict in which an implicit norm overcomes an explicit norm; and ii) as a way of explaining the creation and effects of a preference relationship between two legal norms. Finally, in the fifth chapter, I will make a synthesis and balance of the analyzed theories of defeasibility in order to highlight which are their common and which are their divergent theses. This will allow me to argue that in legal theory we can distinguish between two types of understanding of defeasibility: on the one hand, those who have conceptualized this concept in order to account for a norm that is no longer relevant to the solution of the normative problem; and on the other hand, those who have conceptualized this concept in order to justify the loss of the duty of the law enforcer to use a norm that solves the normative problem when justifying his institutional decision.