Legal normativity and contestability
Project management: Prof. Dr. Marcus Willaschek
It is a special characteristic of law that the reasoning of legal judgments is not conclusive. This is demonstrated by the fact that in law there is always the possibility of refuting or challenging the application of a legal rule R by means of a reasoned exception to R. The exceptions to legal rules cannot be enumerated. The exceptions to legal rules cannot be enumerated.
The core objective of the project was to deepen our understanding of legal normativity by analyzing the contestability of legal justifications. In particular, the question of the relationship between contestability and indeterminacy was to be analyzed. Does the non-enumerability of exceptions also imply a normative indeterminacy of the situation?
The project was a contribution to the investigation of the normativity of normative orders and in particular to the sub-question of whether normative orders are subject to an incessant process of revision.
The project was carried out as part of the dissertation by project member Michel de Araujo Kurth and with the close support of PIs Marcus Willaschek and Klaus Günther. The basis was the previously compiled bibliography on the topic of contestability. Interim results were presented and critically discussed every six months at the research colloquium held by Prof. Dr. Marcus Willaschek. At a conference in March 2015, some of the project’s sub-questions were examined by renowned legal philosophers and moral philosophers. An essay by the project team member presenting the results of the project and an essay by Günther will also be published in an anthology accompanying the conference.
Based on an analysis of legal contestability, two levels of justification of judgments could be distinguished: a “rule level” and a “substantial justification level”. By analyzing the relationship between these two levels, it was possible to develop a novel approach to answering the question of the relationship between indeterminacy and contestability. According to this approach, contestability and legal indeterminacy are mutually exclusive, since contestability implies a stronger weighting of a judgment on the substantial justification level compared to the rule level and thus implies normative determinacy.
The most important publications of the research project:
Willaschek, Marcus (2013): Defeasibility in Philosophy, Knowledge, Agency, Responsibility, and the Law, special issue of Grazer Philosophische Studien, ed. by: C. Blöser/M. Janvid/H.O. Matthiessen/M. Willaschek, Amsterdam/New York: Rodopi, 2013.
Willaschek, Marcus/C. Blöser/M. Janvid/H. Matthiessen: “Introduction”, in: C. Blöser/M. Janvid/H.O. Matthiessen/M. Willaschek (eds.): Defeasibility in Philosophy. Graz Philosophical Studies , 87, 2013, S. 1-8.
Willaschek, Marcus: “Strawsonian Epistemology. What Epistemologists can learn from ‘Freedom and Resentment'”, in: Defeasibility in Philosophy. Graz Philosophical Studies 87, C. Blöser/M. Janvid/H.O. Matthiessen/M. Willaschek (eds.), 2013, pp. 99-128.
Willaschek, Marcus: “Morality without sanction? Notes on Julia Hermann and Mario Brandhorst”, in: E. Buddeberg/A. Vesper (eds.): Morality and sanction. A controversy about the authority of moral norms Frankfurt am Main: Campus, 2013.
de Auraujo Kurth, Michel: “Selected Thematic Bibliography of Work on Defeasibility in Philosophy and Related Disciplines”, in: Grazer Philosophische Studien 87, 2013, pp. 217-257.
The most important events in this project:
Workshop: Defeasibility in the Law (organized by Marcus Willaschek, Klaus Günther and Michel de Araujo Kurth, with presentations by: PD. Carsten Bäcker, Prof. Ruth Chang, Prof. Jonathan Dancy, Dr. Susanne Mantel, Prof. Josep Joan Moreso, Prof. Matthias Klatt, Prof. Andrei Marmor, Prof. Marcus Willaschek, Andreas Müller M. A., Michel de Araujo Kurth M. A.), Cluster of Excellence “The Formation of Normative Orders”, Goethe University Frankfurt am Main, March 12-13, 2015.
Panel: “Legal Indeterminacy in International law and Contemporary American Constitutional Law” at the Cluster Nachwuchskonferenz 2014 Praktiken der Kritik, Cluster of Excellence “Die Herausbildung normativer Ordnungen”, Goethe University, Frankfurt am Main, December 6, 2013.
people in this project:
Project management / contact person
Willaschek, Marcus, Prof. Dr.
Project staff
de Araujo Kurth, Michel