Abstract
In one standard sense, defeasibility is a feature of inferences, and one that seems to defy classical first order logic: An inference is defeasible when its putative conclusion is rendered doubtful by the addition of premises (thus violating monotonicity). The main argument of this paper is that certain types of inferences are defeasible in ways that render the putative conclusion genuinely indeterminate. The discussion, and most of the examples, focus on pragmatic inferences, legal inferences and on some overlapping cases, that is, cases in which legal defeasibility is actually a matter of pragmatics. I also argue that legal presumptions and the open-endedness of possible exceptions to legal rules behave differently, and are not susceptible to the kind of defeasibility discussed here. The upshot of the discussion is to show that defeasibility in law sometimes generates a genuine kind of legal indeterminacy. From a legal point of view, the conclusion would be neither here nor there. In such cases, decision-makers must make their judgments on the basis of considerations not dictated by the relevant law.
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Notes
- 1.
Notice that these conclusion reversals can go on for a while; suppose I add “they separated as soon as they arrived at the airport,” so now you would realize that they did go together after all.
- 2.
Probabilistic reasoning, such as Bayesian epistemology, is in many cases the main alternative model, and it is sometimes very difficult to nail down the boundaries between inferences susceptible to non-monotonic logic and those that are instances of credence adaptations.
- 3.
The idea of undercutting defeats was probably presented first by Pollock (1970). It has been widely used since.
- 4.
Part of the problem here stems from the fact that the development of a formal non-monotonic calculus proved to be a very tricky matter (though there is a huge interest in it in computer sciences). There are several suggestions in the literature but they all suffer from shortcomings and limitations. The most famous, perhaps, is Reiter (1980). Some linguists and computer scientists have applied default logic to conversational implicatures; see, for example, (Morreau 1995; Walker 1996).
- 5.
Grice (1989a).
- 6.
The same goes for the distinction between implicatures and utterance presuppositions. On the differences between these various forms of implication, and their potential relevance to law, I have elaborated in Marmor (2014), chapters 1 and 2..
- 7.
I will have more to say about this objective standpoint in the last section.
- 8.
The notable exceptions concerns what Grice called “conventional implicatures”. As I explained elsewhere in some detail (Marmor 2014, chapter 2), I think that conventional implicatures are the kind of implications that are semantically encoded in the expression used and, thus, not cancelable.
- 9.
I am not suggesting that this is the only kind of relation between indeterminacy and under-determinacy generally; it is the one, however, that is relevant to our cases.
- 10.
See, for example, Burgess (2009: 123). See also the entry on non-monotonic logic in the Stanford Encyclopedia of Philosophy.
- 11.
Bayesian epistemology is of course the main candidate here.
- 12.
There might be a fourth type of case that is unique to common law systems concerning the inferences courts draw from precedent and ways in which precedents are “distinguished”. I will not discuss reasoning from precedent in this paper, it is complicated enough to deserve separate discussion.
- 13.
Some types of sovereign immunity are legally defined as non-rebuttable presumptions, probably for rather archaic reasons.
- 14.
Admittedly, there is also a colloquial understanding of this presumption that is very different from the legal one. In everyday, non-legal sense, the presumption of innocence is not a presumption at all, it is a kind of moral requirement to abstain from judgment about a person’s guilt until proven otherwise.
- 15.
U.S. lawyers and judges often refer to these rules of interpretation as canons of construction. U.S. jurisprudence recognizes dozens of such canons of construction, but their nature is far from uniform and many of them are just rule-like formulations of well-established legal doctrines or precedents.
- 16.
Holton (2011: 165–183).
- 17.
John Horty has developed a detailed and interesting account based on non-monotonic logic; see, for example, Horty (2007). Horty’s work is partly the target of Holton’s argument about exceptions to legal rules. As will be seen below, in this particular context I side with Holton in this debate.
- 18.
Holton’s account is reminiscent of ways in which the concept of prima facie obligation has been thought of. The idea is that a prima facie obligation is a reason for action, such that failure to act on it is wrong unless there is a conflicting reason not to act on it that prevails in the circumstances. The account traces to Ross (1930: chapter 2).
- 19.
The idea that there are rules in the moral domain is famously challenged by J. Dancy’s particularism. And of course, though for very different reasons, by act-utalitarianism as well. As I say in the text, nothing that I say here about legal rules should be assumed to apply to moral rules as well.
- 20.
Lest somebody assumes that I have in mind legal principles ala Dworkin, I should clarify that I do not. Elsewhere I argued that there are no such things as legal principles in the sense Dworkin has argued for; see Marmor (2011a: chapter 4). I am thinking about some well-entrenched legal “tests,” such as foreseeability for proximate causation in tort law. The way the foreseeability test is used by courts does lend itself to be the kind of rule that has an implicit typicality premise embedded, one that is recognized to fail on occasion.
- 21.
See Marmor (2014: chapter 1).
- 22.
529 U.S. 120 (2000).
- 23.
For an historical account of the facts and circumstances that brought about this litigation, see Ruger (2011: 334).
- 24.
That is so, because the FDCA created two separate regulatory schemes for products (other than foods and cosmetics) that purport to have some medicinal benefits and those that do not. If a product is claimed by its manufacturer to have some medicinal benefit, the FDA needs to conduct a series of hearings, based on scientific research, to determine whether to approve the product or not. However, if the manufacturer does not claim any medicinal benefit with respect to a given product, which is clearly the case with tobacco products, and the product proves to be harmful, the FDA must prohibit its sale.
- 25.
499 U.S. 83 (1991).
- 26.
Truth to be told, the dissent’s view has been later vindicated by Congress itself, since it swiftly enacted an amendment to the act, overruling the decision in Casey.
- 27.
My argument in the text relies on the distinction that I have defended on several occasions, between questions pertaining to what the law says or implicates, and questions about the interpretation of the law when it is not clear enough what the law says or, not clear how what the law says determines the issue at hand. Legislative intent may well be relevant to modes of statutory interpretation, I am not denying that.
- 28.
I defended an objective conception of asserted content in Marmor (2014), chapters 1 and 5.
- 29.
I am grateful to the participants of the conference on Defeasibility in Law, held at Goethe University in Frankfurt (March 2015) for helpful comments on a draft of this paper, particularly to my commentator, Klaus Gunther.
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Marmor, A. (2016). Defeasibility and Pragmatic Indeterminacy in Law. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_2
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