Abstract

GARCIA YZAGUIRRE, Víctor. Defeasibility of rules and principles. A proposal for analysis. Derecho [online]. 2021, n.87, pp.373-404. ISSN 0251-3420.  http://dx.doi.org/10.18800/derechopucp.202102.011.

In this article I am going to analyze and criticize the proposal for conceptualizing the defeasibility of rules and the defeasibility of principles in the theses of Manuel Atienza and Juan Ruiz Manero. For this purpose, I will carry out a brief critical reconstruction of their proposal of distinction in order to indicate in a brief, clear and precise way how they understand the defeasibility of prescriptive norms. I will do that for the purpose of justifiying three points: a) the defeat of rules is better understood as a reinterpretative process of legal material; b) defeating rules is not equivalent to defeating principles; and c) the language of rules and principles presents the same operations and results as the language of recalcitrant experiences and axiological gaps, only that, unlike these, the first of the languages ​​presupposes a prescriptive claim about how the language of the legal material should be understood. To achieve this objective, I will take the following steps: in section II, I will present critically the distinction between rules and principles, the notion of licit and illicit atypical act, and what it means to say that rules are resistant to principles. In section III, I will present that the reconstructed thesis suffer from ambiguity when they develop the notion of defeasibility. They present, on the one hand, a problem of superability between norms and, on the other, a problem of apparent relevance of a norm to solve an individual case. Likewise, I will offer a proposal to reformulate the defeat of rules from the theory of interpretation. Finally, I will end by showing that the language of rules and principles presupposes a normative thesis about how norms should be identified.

Keywords : Rules; principles; defeasibility; mandate norms; interpretation.

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