10.2307/3505144

Atria, Fernando

doi:10.2307/3505144

Cited by 6 publications

(4 citation statements)

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“…This seems to show that there is a tension between the Razian theses on the social sources of law, the authority of law, and adjudication in law (see also Atria 1999; Bayón 2002; Moreso 2001b).…”

Section: The Razian Theory Of Adjudication: Even Judges Are Humanmentioning

confidence: 99%

On the Exclusionary Scope of Razian Reasons

Moreso

2024

Ratio Juris

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This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first‐order reasons to behave as they prescribe, and with second‐order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on the one hand, in what sense and subject to what limits legal norms provide exclusionary reasons for the organs entrusted with applying the law, especially for judges, and on the other hand, how and to what extent legal norms provide citizens with exclusionary reasons. So, in recognizing the strength of the Razian conception, the article also points to some of the difficulties it faces.

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Section: The Razian Theory Of Adjudication: Even Judges Are Humanmentioning

confidence: 99%

On the Exclusionary Scope of Razian Reasons

Moreso

2024

Ratio Juris

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“…It also entails that the justification of the decision so established lies, at least partially, outside the delegating and constraining norms. 'Interpretive discretion' instead indicates the arguable or disputable area of judgment that is present in every applied legal statement, 290 as a result of the general 'discretionary character of knowledge'. 291 It will be broken down into three sub-categories: semantic, factual, and systemic.…”

Section: Towards a Unified Account Of Discretion In Lawmentioning

confidence: 99%

The Making of Constitutional Democracy: From Creation to Application of Law

Sandro

2023

SSRN Journal

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“…For a discussion of either version see, e.g.,Schauer (1991),Atria (2001, 177ff. ),Atria (1999),Rodríguez (2012, 99),Ratti (2015). 8 143 U.S. 457 (1892).…”

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confidence: 99%

Defeasibility, Law, and Argumentation: A Critical View from an Interpretative Standpoint

Poggi

2020

Argumentation

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The phenomenon of defeasibility has long been a central theme in legal literature. This essay aims to shed new light on that phenomenon by clarifying some fundamental conceptual issues. First, the most widespread definition of legal defeasibility is examined and criticized. The essay shows that such a definition is poorly constructed, inaccurate and generates many problems. Indeed, the definition hides the close relationship between legal defeasibility and legal interpretation. Second, this essay argues that no new definition is needed. I will show that from an interpretative standpoint, there is nothing special about legal defeasibility. Contrary to what some authors maintain, no unique or privileged source of legal defeasibility exists, nor are there privileged arguments to justify it. Specifically, legal defeasibility refers to interpretative outcomes deriving from interpretative arguments that, on the one hand, are very different from one another, and, on the other, are often employed to justify different interpretative outcomes. In the legal field, the problems related to defeasibility have little in common with the problems that this label covers in other areas—such as logic or epistemology—and they are nothing but the well-known problems related to legal interpretation. In conclusion, this paper argues that as far as legal argumentation is concerned, the notion of legal defeasibility lacks explanatory power, and it should be abandoned.

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10.2307/3505144

Cited by 6 publications

References 0 publications

On the Exclusionary Scope of Razian Reasons

On the Exclusionary Scope of Razian Reasons

The Making of Constitutional Democracy: From Creation to Application of Law

Defeasibility, Law, and Argumentation: A Critical View from an Interpretative Standpoint

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