Coherence in Legal Doctrine

Abstract

Social normativity is an important keyword in our project of making sense of legal doctrine. Other keywords are defeasibility, weighing, and equilibrium. Theories of the defeasibility of legal reasoning have a strange history. In the mid-20th century, H. L. A. Hart wrote what follows:

Claims upon which law courts adjudicate can usually be challenged or opposed in two ways. First, by a denial of the facts upon which they are based [...] and secondly by something quite different, namely a plea that although all the circumstances on which a claim could succeed are present, yet in the particular case, the claim [...] should not succeed because other circumstances are present, which brings the case under some recognized head of exception, the effect of which is either to defeat the claim [...] altogether, or to “reduce” it. (Hart 1952, 147-8)