Legal Defeasibility in Context and the Emergence of Substantial Indefeasibility

Commentators have long debated the extent to which defeasibility permeates legal argument. An inference drawing a conclusion is defeasible if there is some other proposition that, if taken in conjunction with the original proposition, undermines or casts doubt upon the conclusion drawn by the inference. Legal philosophers such as John Dewey and H.L.A. Hart have argued that legal statements are inherently defeasible.In this essay, I argue that the extent to which law is defeasible is heavily contextual. In order properly to understand different conceptions of defeasibility, it is important to identify the background against which one should judge whether a legal proposition is defeasible. First, one can consider defeasibility of legal propositions and legal reasoning purely in the abstract, with no system of law in place. Second, one can consider defeasibility against the background of an established legal system but one that need not continue in perpetuity. Third, one can consider a functioning legal system that, it is assumed, exists and will continue to exist indefinitely, but where legal rules can be changed by the legislature or by the courts *ultimately under the universal rule of recognition). Last, once can consider the portion of an existing legal system (that exists and will continue to exist) that has evolved sufficiently that change in the legal rules contained therein are highly unlikely to occur (if indeed they ever do). I argue that Dewey’s and Hart’s competing conceptions of defeasibility lie in the third and fourth backdrops just described. I further argue that the better conception is the one that lies in the fourth backdrop — where more evolved legal concepts lie. These more evolved legal concepts rest on legal assertions that typically are unlikely to be defeasible. As such, I argue that the fourth backdrop offers at least a state of “substantial indefeasibility.” An area of law features substantial indefeasibility when a substantial number of legal rules in that area are perceived to be indefeasible either absent action by the legislature or otherwise by extenuating circumstances. The notion of substantial indefeasibility builds upon the Hartian idea of a sizeable “core” where the proper interpretation of legal assertions is undisputed; it requires in addition that a legal assertion in that core be perceived to be indefeasible absent legislative interference or some overriding reason why the legal assertion should be subject to defeasance. Substantial indefeasibility rescues legal reasoning from devolving into “transcendental nonsense,” as Felix Cohen suggests. Moreover, it accords with a “punctuated equilibrium” view of legal and legal evolution.I also argue that, to the extent that perceptions of commentators and courts reflect its existence, substantial indefeasibility is a prominent feature of U.S. jurisprudence. Since common law systems, of which the U.S. system is an example, are said to be more susceptible to defeasibility than other systems, the existence of substantial indefeasibility in U.S. law strongly suggests that the phenomenon is vital in other jurisprudences as well. To make the point under U.S. law, I rely on jurisprudence under the law of federal habeas corpus, and under private litigation to vindicate constitutional violations allegedly committed by state officers in their official actions — i.e., section 1983 litigation. Under statutes and common law, habeas jurisprudence directs that federal courts leave intact state criminal convictions against subsequently recognized constitutional violation except to the extent that then-existing case law made the alleged constitutional violation apparent. Similarly, section 1983 jurisprudence affords state officers immunity from suit unless it can be shown that, at the time their actions were undertaken, the fact that those actions violated the Constitution was clearly established. These rules allow us to infer that Congress and the courts understand substantial swaths of law to be substantially indefeasible.