ON THE SUPPOSED

DEFEASIBILITY OF LEGAL
RULES

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Frederick Schauer

Because law prescribes for the future based upon its knowledge of
the past, it is continuously at risk of confronting the unantici-
pated, and of being forced to deal with tomorrow's problems with
yesterday's tools. As the pace of human progress accelerates, so
does the frequency with which the law of the past seems inade-
quate in dealing with the issues of the present. Thus an important
identifying characteristic of a legal regime is the way in which it
deals with this tension between the pastness of the law and the
presentness of the problems with which it must deal. Legal
systems are formal in so far as they accept the apparent inade-
quacy of existing law, but accept as well some sub-optimal
outcomes in deciding concrete cases as a price worth paying for
the virtues wrought by the stability of the law. And legal regimes
are adaptive in so far as they reject formality in the service of
trying to achieve correct results in individual cases, or at least
results whose attempts at correctness are not burdened by an obei-
sance to the dictates of written materials pre-dating the situation
the law now confronts. The best example we have of an adaptive
legal regime is that of the United States at the end of the twentieth
century, for here we see a system constantly devising methods for
adapting the constraints of existing and general law to the desire
to reach the correct result in the particular cases of the present.
A characteristic feature of much of twentieth-century jurispru-
dence, especially, but by no means only, American jurisprudence,
is the claim that this adaptability is a necessary feature of legal
rules. Commonly, this claim goes by the name of defeasibility-
the postulated property by virtue of which all legal rules possess
an implicit 'unless the circumstances demand otherwise' clause.
224 Frederick Schauer
The claim of necessary defeasibility first surfaces in the work of
H. L. A. Hart, and is now accepted by a wide range of legal
philosophers whose views otherwise scarcely resemble Hart's. Not
surprisingly, and for reasons I hope to make clear, the claim of
necessary defeasibility, often under a different label, is especially
apparent in American legal theory.
Yet the persistence of the claim of necessary defeasibility does
not entail its soundness. The position that legal rules are neces-
sarily defeasible appears on closer analysis to be partly confused,

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partly superfluous, and partly wrong. In seeing how and why
this is so, we increase our understanding both of law and of the
operation of prescriptive rules in numerous other normative
domains.

I
In The Concept of Law Hart offered the following as a compre-
hensive analysis of regulative rules:
We promise to visit a friend the next day. When the day comes it turns
out that keeping the promise would involve neglecting someone danger-
ously ill. The fact that this is accepted as an adequate reason for not keep-
ing the promise surely does not mean that there is no rule requiring
promises to be kept, only a certain regularity in keeping them. It does not
follow from the fact that rules have exceptions incapable of exhaustive
statement, that in every situation we are left to our discretion and are
never bound to keep a promise. A rule that ends with the word 'unless
.. .' is still a rule. 1
Hart's claim here appears to be that regulative rules retain their
capacity to act as reasons for action qua rules even when subject
to defeating conditions, and, most importantly, even when the list
of such conditions cannot be stated in advance. This last qualifica-
tion appears to capture the distinctive claim of defeasibility, the
name Hart borrowed from the law of property ten years earlier
when he noted that 'a legal interest ... is subject to termination or
"defeat" in a number of different contingencies but remains intact
if no such contingencies mature,.2 At the same time he made clear

1 H. L. A. Hart, The Concept of Law (Oxford, 1961), 136.

2 H. L. A. Hart, 'The Ascription of Responsibilities and Rights', in A. G. N.
Flew (ed.), Logic and Language (First Series, Oxford, 1954), 145-66.
 On the Supposed Defeasibility of Legal Rules 225
that the claim of defeasibility was more than the mere claim that
rules can be defeated upon the occurrence of specified defeating
conditions. Rather, to Hart it was the very unspecifiability of the
defeating conditions, 'the use of the word "etcetera"', that
explained the operation of legal rules, and the sui generis nature of
legal language as welJ.3
My goal here is to engage neither in exegesis nor critique of
Hart. Were the claim of defeasibility merely a component of
Hart's understanding of the operation of legal rules, nothing this

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late in the day would justify further commentary. Indeed, the
claim of defeasibility appears to play only a small role in Hart's
own account of the nature of law. By contrast, however, the claim
of defeasibility has taken on a theoretical life of its own, occupy-
ing a central, if often unstated, position in numerous contempo-
rary accounts of the operation of legal rules and legal
decision-making. Richard Posner, for example, explicitly relies on
the passage quoted above in arguing that the susceptibility to 'ad
hoc exceptions' is a property of any legal rule,4 a claim supported
both by other American legal scholars and by the courts them-
selves. s Relatedly, Risto Hilpinen has maintained that norm
systems, including the norm systems of the law, are necessarily
corrigible when faced with unexpected events, 6 and Roger Shiner
has argued that because legal rules are 'necessarily subject to
diachronic variation and change', it is impossible in advance to
determine conclusively the content of a legal rule. 7 The claim of
the necessary defeasibility of legal rules has also been argued to be
an implication of realist semantics, 8 of Aristotelian practical

3 See Hart's 'Definition and Theory in Jurisprudence', his inaugural lecture,

now found in H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford,
1983),21-48.
4 Richard Posner, 'The Jurisprudence of Skepticism' (1987) 86 Michigan Law
Review 827-64.
5 Alfred C. Aman, Jr., 'Administrative Equity: An Analysis of Exceptions to
Administrative Rules' [1982] Duke Law Journal, 277-331; WAIT Radio v. FCC,
418 F.2d 1153 (DC Cir. 1969).
6 Risto Hilpinen, 'Conflict and Change in Norm Systems', in Ake Frandberg
and Mark van Hoecke (eds.), The Structure of Law (Uppsala, 1987), 37-49.
7 Roger Shiner, Norm and Nature: The Movements of Legal Thought
(Oxford, 1992), 146-7.
8 Michael Moore, 'The Semantics of Judging' (1981) 54 Southern California
Law Review 151-294 and 'A Natural Law Theory of Interpretation' (1985) 58
Southern California Law Review 277-398.
226 Frederick Schauer
reason,9 of American pragmatism,lO and, not surprisingly, of
deconstruction. 11 From numerous perspectives, therefore, it is
widely believed that a necessary property of a legal rule is its
susceptibility to modification in the face of circumstances
presently unforeseen and perhaps unforeseeable. 12 In challenging
this belief, I will first distinguish the claim of defeasibility from
other claims about the structure of rules, arguing that the claim of
defeasibility is distinct from a number of related claims. I then
argue, however, that the claim that defeasibility is a necessary

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property of legal rules is false.

II
Hart says that a rule contammg an 'unless' clause is still a rule,
and thus we might suppose that: '(D 1) A rule is defeasible when it
contains a stated "unless" condition, the non-occurrence of which

9 e.g, William N. Eskridge Jr. and Philip P. Frickey, 'Statutory Interpretation

as Practical Reasoning' (1990) 42 Stanford Law Review 321-84.
10 Cass R. Sunstein, 'Interpreting Statutes in the Regulatory State' (1989) 103
Harvard Law Review 405-502.
11 e.g. Anthony D'Amato, 'Aspects of Deconstruction: The Failure of the
Word "Bird" , (1990) 84 Northwestern University Law Review 536-41.
12 Although my argument will concentrate on the philosophy of law, its
import is wider, in that philosophical arguments about other normative domains
have also rested on what appear to be versions of the defeasibility claim.
T. M. Scanlon has argued that moral rules have immanent content not capable of
conclusive discovery until specific cases arise: 'Levels of Moral Thinking', in
D. Seanor and N. Fotion (eds.), Hare and Critics: Essays on Moral Thinking
(Oxford, 1988), 129-46, and David Brink makes a similar argument in 'Legal
Theory, Legal Interpretation, and Judicial Review' (1988) 17 Philosophy and
Public Affairs 105-48. Similar claims about the continuous corrigibility of specific
moral rules have been made as interpretations of Kant. Onora O'Neill,
'Abstraction, Idealization and Ideology in Ethics', in J. D. G. Evans (ed.), Moral
Philosophy and Contemporary Problems (Cambridge, 1987), 55-69; Onora
O'Neill, Constructions of Reason: Explorations of Kant's Practical Philosophy
(Cambridge, 1989); Sally Sedgwick, 'On Lying and the Role of Content in Kant's
Ethics' (1991) 82/1 Kant-Studien 42-62. Kurt Baier has claimed that exceptions to
a seemingly exceptionless rule are in some unexplained way 'part of' the rule: The
Moral Point of View (Ithaca, NY, 1958), 192-5, and some philosophers have
argued that all obligations are only conditional, capable of defeat upon the occur-
rence of unspecifiable-in-advance events. See Barry Loewer and Marvin Belzer,
'Prima Facie Obligation: Its Deconstruction and Reconstruction', in Ernest Lepore
and Robert Van Gulick (eds.), John Searle and His Critics (Oxford, 1991),
359-70. My attack on the claim that legal rules are necessarily defeasible, there-
fore, is, mutatis mutandis, an attack on the claims that all rules, or all moral rules,
are necessarily defeasible.
 On the Supposed Defeasibility of Legal Rules 227
is necessary for the application of the rule'. But D1 does not iden-
tify the feature of a rule that explains its allegedly open-ended
character, for the claim that a rule with an 'unless' clause is still a
rule is an almost trivial linguistic point. Compare:
(1) Killing another human being is prohibited unless one is
acting in self-defence;
(2) Unnecessary killing of another human being is prohibited;
(3) Murder is prohibited.

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Now define as necessary killings all and only killings in self-
defence. Then (2) is equivalent to (1). And if murder is defined as
unnecessary killing, then (3) is equivalent to (2), and therefore to
(1). Thus the extension of the rule, the activities it prohibits, does
not change upon moving from using an 'unless' clause in (1), to
incorporating the same qualification within the primary prohibi-
tion in (2), to embedding that qualification within a technical term
in (3). Likewise, if all and only ambulances and police cars are
authorized to be in the park, then 'no vehicles in the park unless
they are police cars and ambulances' and 'no unauthorized vehi-
cles in the park' indicate the same outcomes for all those vehicles
that are plainly (or plainly not) police cars and ambulances,
although only the former contains an 'unless' c1ause.13
Hence the use or not of an 'unless' clause (or an exception)
often flows not from the desire of the rule-maker to have this or
that extension of the rule, but rather from the availability (or not)
of words or simple phrases semantically excluding from the cover-
age of the rule that which the rule-maker seeks to exclude. Where
such 'internally' excluding language is available, there is no need
for an 'unless' clause. But where no such word or phrase exists, an
'external' exclusion by use of an 'unless' clause is then necessary.
Thus there is no extensional difference between 'no fornication'
and 'no sexual intercourse except (unless) with one's spouse', and
the use of something like the former rather than something like
the latter will usually turn on the existing array of available
linguistic tools.14

13 The different formulations may have different borderlines, and thus I make
no stronger claim of equivalence than stated in the text.
14 There is perhaps a relationship between the goal of some legal rule and the
availability of language closely fitting that goal. When regulation reinforces exist-
ing social practices, as when a society outlaws cannibalism, language tracking the
228 Frederick Schauer
Because all 'unless' clauses can therefore be eliminated by the
introduction of new terms, and because the presence or absence
of 'unless' or an exception does not mark a difference between
open-ended and closed-ended rules, we must reject Dl as a plau-
sible definition of the feature of rules that the proponents of the
claim of the necessary defeasibility of rules have sought to iden-
tify.

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III
Suppose we instead interpret the supporters of the claim of neces-
sary defeasibility as maintaining that a rule subject to override is
still a rule. Indeed, Hart's example of breaking a minor promise in
order to assist someone seriously ill suggests he is claiming that
overridable rules are rules despite their overridability. Thus, '(D2)
a rule is defeasible when it is capable of being overridden, and
consequently the action indicated by a defeasible rule is to be
taken only when no overriding conditions obtain.'
This definition of defeasibility does identify a structurally inter-
esting feature of rules, but remains unsatisfactory for our purposes
for two reasons. First, it merely restates the conventional under-
standing of a prima facie rule, 15 and thus does not necessarily
implicate the key feature of open-endedness. According to the
conventional understanding, overridable rules retain some norma-
tive force despite their overridability, in part because the indica-
tions of the rule hold sway when no conflicting or overriding rule
(or principle, or duty, or obligation) is present, and in part
because overridable rules also prevail when there is a conflicting

regulatory goal is more likely available, I would suppose, than when regulation
presses against existing social practice. And of course linguistic economy will not
be the only factor determining whether an 'unless' clause is used. Often the place-
ment of a primary prohibition and an exception, defense, or defeating condition
will serve non-trivial goals of allocating the burden of proof.
15 For reasons well argued in John Searle, 'Prima Facie Obligations', in Joseph
Raz (ed.), Practical Reasoning (Oxford, 1978), 81-90, I prefer the term 'overrid-
able' to 'prima facie', and will use the latter throughout. On the conventional
understanding, the locus classicus is W. D. Ross, The Right and the Good (Oxford,
1930),1-29, with more sophisticated embellishments to be found in Alan Gewirth,
'Are There Any Absolute Rights?' (1981) 31 Philosophical Quarterly 1-16; Robert
Nozick, 'Moral Complications and Moral Structures' (1968) 13 Natural Law
Forum 1-50; Judith Jarvis Thomson, 'Some Ruminations on Rights' (1977) 19
Arizona Law Review 45-60.
 On the Supposed Defeasibility of Legal Rules 229
rule less weighty than the first. 16 Thus if I have promised to teach
a colleague's classes for a week so she can attend an important
conference in Australia, it would be right for me to take that
obligation as not overridden by a subsequent request from an
uncle to keep him company while he recovers from minor
cosmetic surgery. But this is consistent with the latter obligation
prevailing in other cases (I had only promised to meet my
colleague for lunch), and also with there being some obligations
similar to the latter that would override the former (my uncle's

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recovery from more serious surgery might depend on my pres-
ence). The former obligation, therefore, keeping a promise the
breaking of which would have moderately serious negative conse-
quences, is plainly an obligation, not only because it may inject a
residue when overridden (if my uncle's serious illness prevents me
from keeping my promise to my colleague, the task of finding a
substitute falls to me and not to her in the first instance), but
because its existence elevates the threshold strength necessary for a
conflicting obligation to prevail. The first obligation prevents an
otherwise outcome-determinative obligation from prevailing, and
thus the first obligation has normative force even though capable
of being overridden. So too with rules, but if this is what is meant
by defeasibility then the understanding of defeasibility is
exhausted by the conventional understanding of overridability, an
understanding that would be satisfied by a closed-ended list of
overriding factors. Consequently, defining defeasibility as overrid-
ability simpliciter does no work in locating a concept of defeasibil-
ity that explains the unspecifiability that seems to important to
Hart, to Posner, and to many others.
Moreover, there is no reason to believe that legal rules must
necessarily be overridable. Although Dworkin's claim that rules
are by definition necessarily non-overridable is confused,17 it is

16 Walter Sinnott-Armstrong, Moral Dilemmas (Oxford, 1988), 41-3, distin-

guishes among overrides, cancellations, and excuses. In so far as a cancellation
arises when it would be pointless to follow a rule that appears to indicate the
pointless action, I deal with this in the following section. And nothing here turns
on the distinction between overrides and excuses, which I therefore intentionally
conflate.
17 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass., 1977),22-8.
There is a distinction between crisp ('Speed Limit 55') rules and vague ('reckless
driving is prohibited') ones, and there is a distinction between overridable and non-
overridable ones. Dworkin's mistake is in assuming that the latter distinction
230 Frederick Schauer
still implausible to believe that the overridability of its rules is an
essential property of a legal system. Initially, a legal system might
embrace as a legal rule some non-overridable moral rule (assum-
ing there are such things). In that case, the only grounds for
believing that the legal system's domestication of an absolute
moral rule should render it non-absolute in the legal context
would be an implausibly strong rule of morality pursuant to
which the norms of the legal system would necessarily override all
non-legal norms for agents within the legal system. And in this

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case the legal system's own norms would themselves be non-over-
ridable, and so the claim of necessary overridability fails.
Alternatively, if there are no absolute moral rules, then nothing
about the legal context makes a difference worth noting. The
claim of Hart and others, therefore, would not be a claim about a
feature of legal rules, but rather simply a well-worn claim about
the fact that all rules are necessarily over ridable in the face of
overwhelming moral obligation. This claim is likely true, but it is
not a claim that tells us anything about the structure of legal rules,
except in so far as it smuggles into a claim about the structure of
legal rules a claim about the non-conclusiveness of legal obligation
qua legal obligation.
Yet perhaps we are on the wrong tack. Perhaps we can better
approach the importance of Hart's emphasis on 'etcetera',
Posner's attention to 'ad hoc exceptions', and the related claims
of many others by focusing even more closely on the identity and
specifiability of the potentially overriding conditions. Suppose we
can anticipate all of the potentially overriding conditions, just as
Hart anticipates that the obligation to tend to the dangerously ill
will override the obligation to meet one's friend. If this is the
case, then, '(D3) a rule is defeasible when it is capable of being
overridden by the occurrence of any of a set of specifiable-in-
advance conditions, the occurrence of none of which is necessary

tracks the former, with crispness being the marker for non-overridability. In fact
the distinctions cut across each other, for some vague rules ('Do unto others as you
would have them do unto you') may be understood as non-overridable, while quite
crisp rules, like speed limits, are ordinarily understood, in law and out, as subject
to override. See Joseph Raz, 'Legal Principles and the Limits of Law', in Marshall
Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (Totowa, N.J.,
1983), 73-87; Frederick Schauer, Playing By the Rules: A Philosophical
Examination of Rule-Based Decision-making in Law and in Life (Oxford, 1991),
12-15.
 On the Supposed Defeasibility of Legal Rules 231
and sufficient to take the action indicated by the rule'. D3,
however, eliminates the very feature of non-specifiability that the
proponents of the defeasibility claim take to be essential.
Moreover, D3 is susceptible to the same attack as noted above in
the discussion of 'unless', since any specifiable-in-advance condi-
tion can be translated simply into a component of the primary
prohibition of the rule. There is no extensional difference, after
all, between '[t]here is an obligation to keep promises-that-do-
not-conflict-with-the-obligation-to-attend-to-sick-relatives' and

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'[k]eep all promises, unless doing so would involve violating the
greater obligation to attend to a sick relative'.
So if D3 still does not capture what might be distinctive about
the claim of defeasibility, then perhaps we can make progress by
substituting a definition that acknowledges the possibility that the
potentially overriding conditions can be specified in advance only
by broad type and not by particular. We could call this weak non-
specifiability. If so, then, '(D4) a rule is defeasible when it is capa-
ble of being overridden by the occurrence of any of a set of
defeating conditions specifiable in advance by type but not by
particular, the non-occurrence of which is necessary and sufficient
to take the action indicated by the rule'. But this remains inade-
quate, for an inability to pre-specify the full extension of the
potentially overriding conditions is no different from an inability
to pre-specify the full extension of the primary prescription. To
maintain that 'no vehicles in the park' is defeasible because the
rule is not action determinative in cases of 'emergency' is not to
say anything about the inability to pre-specify all of the emergen-
cies that could not also be said about the inability to pre-specify
all of the prohibited vehicles. Thus what could be said about
defeasibility would be exhausted by what could be said about the
core and fringe applications of any classifying term, the claim of
necessary defeasibility would turn out to be not a claim about law
at all.

IV
It thus appears that if there is anything left for the claim of defea-
sibility, it must be that 'etcetera' and 'ad hoc' suggest what we can
call strong non-specifiability (or strong open-endedness), pursuant
to which legal rules are necessarily subject to defeat by conditions
232 Frederick Schauer
we cannot imagine in advance even by type, and that despite this
they retain the normative force necessarily a part of any rule.
Thus, '(DS) A rule is defeasible when its application is contingent
not only upon the non-occurrence of events specifiable in advance
by particular or type, but also by the non-occurrence of conditions
specifiable in advance neither by particular nor by type'. Once we
add this condition of strong non-specifiability, we do appear to
have captured something about the claim of necessary defeasibility
not already explicitly or implicitly embedded within existing

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understandings of overridability. It remains to be seen, however,
whether what is now distinctively claimed is sound.
With the exception of Kantian ultimate moral rules that are not
my concern here, rules, including legal rules, are instrumental to
their background justifications. Whether this be the rule-utili tar-
ian's rule serving background utilitarian justifications, or the 'no
vehicles in the park' rule attempting to promote tranquillity or
safety, rules are ordinarily instrumental to their background justi-
fications. Moreover, rules have the capacity to serve as reasons for
action qua rules only when the rules themselves, unlike rules of
thumb, can be taken by agents (for reasons I need not address
here) as reasons for action independent of the reasons for action
supplied by the rule's background justification.
So what happens when such an instrumental but genuine rule
confronts a previously unanticipated event? Suppose, first, that the
event lies both within the linguistic contours of the primary rule
and the contours of the rule's background justification. In that
case the rule is simply applied, for the question of defeat does not
arise when an automobile being driven for pleasure confronts a
'no vehicles in the park' rule, whose language and purpose both
encompass this case, even if it is not a case that has previously
been imagined. Thus doubts about whether the rule should be
applied arise at first only when an event occurs that is within the
rule's linguistic contours but outside of background justification,
as with a police car or Fuller's hypothetical of a functioning vehi-
cle incorporated within a war memorial. 18 Yet if any inconsistency
between the rule (as formulated) and the result indicated by direct
application of the rule's background justification is a sufficient

18 Lon Fuller, 'Positivism and Fidelity to Law-A Reply to Professor Hart'

(1958) 71 Harvard Law Review 630-72.
 On the Supposed Defeasibility of Legal Rules 233
condition for non-application of the rule, then the rule prohibits
no action not prohibited by the background justification. 19 If
inconsistency between rule and justification is sufficient to favour
justification over rule, then all of the normative work is being
done by the justification and none by the rule.
Thus, if DS means that additional 'unless' clauses (or their
equivalents) may be added whenever necessary to serve the
purposes behind some rule, then the rule is reduced to a mere rule
of thumb incapable of supplying its own reasons for action. This

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may sometimes (or even always) be a wise decision procedure, as
with the use of rules of thumb by the act-consequentialist,20 but
just as my aversion to anchovies does not lead me to believe that
they cannot exist, so too should an aversion to a strong form of
rule-based decision-making not lead to the conclusion that it
cannot exist. DS, therefore, by denying the possibility that the
occurrence of an unforeseen event within a rule's linguistic reach
but outside its purpose can justify application of the rule, appears
to justify necessary defeasibility only by rejecting the possibility
that the rule qua rule can be a reason for action independent of
the reasons for action supplied by its background justification. If
defeasibility is purchased at the cost of the rule itself, the cost is
too high, at least for the purpose of maintaining, with Hart and
his followers, that ruleness and strong defeasibility can co-exist.
It might now be objected that a Rawlsian process of rule-appli-
cation and modification by reflective equlibrium enables rules to
be modified in application and still serve as reasons for action. But
implicit in the phenomenology of reflective equilibrium is the
possibility that some applications of a rule (or general principle)
might differ from what would have been done, all things consid-
ered, in the absence of the rule, but which still do not appear suffi-
ciently problematic to justify reconsidering or reformulating the
rule. And if there is such a set of applications in which the exis-
tence of the rule makes a difference, then the rule supplies a
reason for action even though it is subject to recalibration when

19 If the same point applies to under-inclusion as to the over-inclusion

described in the text, then taking divergence between rule and justification as suffi-
cient for application of the justification would cause the rule to disappear entirely.
20 e.g., ]. J. c. Smart, 'Extreme and Restricted Utilitarianism' (1956) 6
Philosophical Quarterly 344-54; ]. Urmson, 'The Interpretation of the Moral
Philosophy of]. S. Mill' (1953) 3 Philosophical Quarterly 3-39.
234 Frederick Schauer
the particular judgement is especially troublesome. But if the rule
is subject to recalibration whenever the particular case appears at
all troublesome, then the rule qua rule is not a reason for action,
and all of the burden is carried by whatever it is that makes the
particular application appear troublesome.

v
In the previous section I assumed that the previously unanticipated

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event was within the linguistic reach of the rule formulation, but the
proponents of the claim of necessary defeasibility may yet have
something different in mind. What if the new event is neither within
nor without the existing rule? In one sense the question is uninterest-
ing, for if the rule is simply vague as to some application it is uncon-
troversial that decision-making must necessarily make recourse to
something above, below, or behind the rule itself in order to apply it.
The more interesting question arises when a rule appears
perfectly clear just until some event renders it unclear. Here Hart's
express reliance on Waismann's notion of open texture becomes
relevant,21 but the issues are more troublesome than either Hart
or his followers recognize. We must consider how a rule written in
some language could be open-textured in Waismann's sense. Take
Austin's example of the exploding goldfinch, in which we are left
speechless by the explosion before our eyes of that which we had
hitherto thought to be a goldfinch according to the existing defini-
tion of 'goldfinch,.22 Now suppose for simplicity's sake that a
goldfinch is defined as a yellow bird no greater than four inches in
length with black markings on its wings. And suppose further that
goldfinches are an endangered species, the consequence of which
is their inclusion within a law prohibiting the commercial or deco-
rative use of the skin, feathers, or bone of any animal designated
as an endangered species. Finally, suppose that the law explicitly
incorporates the existing definition of a goldfinch, and thus the
statutory definition of 'goldfinch' is a 'yellow bird no greater than
four inches in length with black markings on its wings'.

21 Friedrich Waismann, 'Verifiability', in A. G. N. Flew (ed.), Logic and

Language (First Series) (Oxford, 1951), 117-44.
22 J. L. Austin, Philosophical Papers (3rd edn., Oxford, 1956), 19. Put aside as
tangential to my point the possibility that the explosion might call into question
whether this was a 'bird' at all.
 On the Supposed Defeasibility of Legal Rules 235
There you are, witnessing the explosion of Austin's goldfinch.
Can you take the feathers for use on a hat? Given our assump-
tions, the beast is within the linguistic reach of the rule, for despite
the explosion it still fits the statutory definition. 23 Consequently, it
appears that you are prohibited from using these feathers, despite
the fact that exploding goldfinches were not imagined when the
rule was written. This merely restates the point of the previous
section. If the claim of open texture is only that previously
unimagined events might fit a rule's language but not its purpose,

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then however true this is, it does not follow that in such cases the
purpose rather than the rule should necessarily prevail.
But what if instead the new case exists within the open texture
of the rule's constituent terms? What if the rule merely specified
'goldfinches', without containing an explicit definition, and then
confronted the exploding creature that might or might not be a
goldfinch? But now the problem appears no different from that
presented by a rule that was vague from the outset. Open texture
is the potential for vagueness, and when that potential is realized
there is no difference between the newly vague rule and one that
was vague all along.
Now it is controversial whether all terms are irreducibly open-
textured. But even supposing Waismann correct and inconsistent
semantic theories mistaken, the relation between the open texture
of language and the open texture of rules written in language is
less than Hart supposes. Or, to put it differently, rules are not
ineliminably indeterminate except as their terms are open
textured, and thus the idea of open texture lends no support to
some special feature either of rules or of legallanguage. 24 For if it
is Hart's point that ineliminable indeterminacy of rules exists
because of the open texture of the rule's constituent terms, then
this is a claim only about the realization of the potential for
vagueness, and says nothing about the defeat of any claim that

23 This point is well made in Gordon Baker, 'Defeasibility and Meaning', in

P. M. S. Hacker and J. Raz (eds.), Law, Morality and Society: Essays in Honour of
H. L. A. Hart (Oxford, 1977), 26-57. And see also Brian Bix, 'H. L. A. Hart and
the "Open Texture" of Language' (1991) 10 Law and Philosophy 51-72.
24 For useful comparisons of different systems along this dimension, see
Patrick Atiyah and Robert Summers, Form and Substance in Anglo-American Law:
A Comparitive Study of Legal Reasoning, Legal Theory and Legal Institutions
(Oxford, 1987); D. Neil MacCormick and Robert S. Summers, Interpreting
Statutes: A Comparative Study (Aldershot, 1991).
236 Frederick Schauer
would otherwise have been indicated by the rule. But if it is Hart's
point that ineliminable indeterminacy of rules exists apart from
the open texture of the rule's constituent terms, then this could
only mean that the rule qua rule is indeterminate even though its
linguistic reach is not. In other words, the claim of the open-
texturedness of rules apart from the open-texturedness of their
language is the claim that when some event is non-vaguely within
a rule's formulation it might still be the case that applying the rule
to that case would be problematic. And that would be so only

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when the event, although non-vaguely within the rule's formula-
tion, was outside the rule's background purpose (or vice versa).
The distinct property of defeasibility has now been exposed-D5
turns out to be equivalent to '(D6) a rule is defeasible when its
application is dependent not only upon the occurrence of an event
lying within the rule's linguistic reach, but upon that event's lying
within the rule's purposes as well'. The property of being subject to
defeat when previously unanticipated events would call into ques-
tion the plausibility of applying the rule in light of the rule's purpose
is indeed a property different from and therefore not exhausted by
the concepts of linguistic vagueness, linguistic open-texture, or over-
ridability. But recall that the proponents of defeasibility claim, not
that defeasibility is a distinct property of some rules, but that it is a
necessary property of all legal rules. This, however, is to make quite
a strong claim about the legal system, one that appears descriptively
inaccurate and normatively contentious.
The claim of necessary defeasibility appears most plausible with
respect to the model of common law decision-making, pursuant to
which judges not only make the rules of law (as they first did with
the central rules of tort and contract), but have the power to
remake them when unforeseen events show that the rules previ-
ously made were either simply mistaken or, more commonly,
insufficiently sensitive to the richness of the human experience.
Just as a linguistic community might wish to redefine 'goldfinch'
upon discovering the exploding variety, so too might a legal
community wish to redefine its rules when events have demon-
strated that the existing ones were inadequate. And that is
precisely what characterizes the method of the common law, a
method that treats its rules as but temporary approximations,
capable of modification and refinement upon the occurrence of
hitherto unexpected events.
 On the Supposed Defeasibility of Legal Rules 237
But however desirable judicial corrigibility might at times be,
it seems implausible to suppose that this is the only account we
can give of legal rules. Another account would stress all of the
familiar virtues of formality, seeing rules as devices for increas-
ing predictability, certainty, uniformity, and allocation of power,
even at the sacrifice of some degree of particularistic optimiza-
tion. Just as the common law is willing to sacrifice some of these
virtues in order to aim at trying to get this case just right, so
might other systems be willing to sacrifice some of the virtues of

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act-based optimization in order to achieve other goals.
The point here is not that one or the other of these models-the
model of formality and the model of adaptability-is more desir-
able. Rather, it is that both are plausible, and both are found in a
greater or lesser degree in most of the world's legal systems. Hart
and his followers, it turns out, have identified a contingent feature
of some legal systems and taken it to be a necessary feature of all.
The claim of necessary defeasibility, cast as a conceptual claim
about rules or about law, is in fact a prescriptive claim about the
empowerment of certain legal actors, primarily judges. Moreover,
Hart and his followers appear to be mistaken in assuming that this
contingent feature of common law systems can be taken on, even
if and when it is desirable to do so, without sacrificing the feature
of rule that the defeasibility account purports to preserve. If, as in
D6, a defeasible rule will be applied only when its application will
be consistent with that rule's background purpose, and is subject
to defeat when its application will not serve its background
purpose (or the full array of background purposes extant in some
decision-making environment), then there will be no case in which
the rule qua rule generates an outcome not generated by the back-
ground purpose, and, as argued above, the normative force of the
rule dissolves. Under Hart's account, therefore, defeasibility is less
a property of rules than it is a property of (some) legal systems
pursuant to which the importance of rules is dramatically dimin-
ished in favour of the importance of judicial discretion in the face
of particular cases of infinite variability.

VI
So it now appears that no claim about the necessary properties of
legal rules, or about the open-ended nature of rules, falls under the
238 Frederick Schauer

heading of 'defeasibility', once we separate out a trivial linguistic

claim, a familiar claim about overridability, and a contingent
descriptive claim about English and American common-law deci-
sion-making. In so far as the unique characteristic of defeasibility
is supposedly that rules are subject to an unlimited list of classes
of potentially defeating conditions, the inquiry shifts to the point
of purchase for defeat. And if rules are subject to defeat whenever
their purposes would not be served, or whenever justice requires
it, or whenever necessary to avoid absurdity, then the weight turns

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out to be carried by the purpose, or by justice, or by absurdity-
avoidance, and not by the rule itself.
But there is a way to rescue part of Hart's insight. Suppose
some rule indicated outcome 0, but that 0 was slightly at vari-
ance with the outcome that would have been generated by direct
application of the rule's background justification. Or suppose that
o was slightly unjust, silly, or otherwise unacceptable from the
perspective of an all-things-considered notion of a correct deci-
sion. Is it not possible that in such cases of only slight disjunction
between the indications of the rule and the direct indications of
deeper (or higher) values that the rule might still prevail, for all of
the numerous reasons having to do with the justifications for
having rules in the first place?
If this is so, then we can recast defeasibility in a way that
connects the idea of an override with Hart's idea of an unlimited
list of potentially defeating conditions. We can say that what gives
a rule its power is its presumptive force, such that although rules
might be subject to override, they will be subject to override if and
only if the conditions for override are stronger then the conditions
that would have been necessary to effectuate the overriding condi-
tion in the absence of the rule. Thus, '(D7) a rule is defeasible
when its application is contingent upon the non-occurrence of an
unspecifiable list of very good reasons for not applying the rule,
such reasons having strength greater than would have been suffi-
cient for those reasons to determine the outcome in the absence of
the rule'.
This formulation makes it clear that the rule as specified in
advance has presumptive force even as against those non-specified
in advance reasons that would otherwise have been sufficient for
the non-application of the rule. This notion of presumptiveness is
 On the Supposed Defeasibility of Legal Rules 239
not epistemic (although some presumptions are), but is instead
designed to capture the idea of a reason of special strength. But of
course it follows from there being reasons of special strength that
there may be perfectly good reasons that do not have this special
strength.
If legal rules operate in this presumptive way, then we can say
that legal rules are subject to defeat by the existence of particu-
larly powerful countervailing conditions, and that the list of such
particularly powerful defeating conditions cannot and need not be

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specified in advance, so long as the requirement of particular
power can be specified in advance and is not itself subject to
defeat. The force of the rule, therefore, exists in the persistence of
an elevated standard of defeat, and just the fact that the elevated
standard itself is not subject to defeat is what makes it possible to
say that a rule's force persists even when it is subject to defeating
conditions not subject to exhaustive statement. Hart's
Wittgensteinian goal was to show that the notion of a Merkmal
definition seemed inapt to capture the operation of legal rules. But
in order for legal rules to survive the rejection of the possibility of
a list of necessary and sufficient condition for their application
and still be rules, it is necessary to recognize that the rule's
presumptive force, its ability to elevate the standards for justifying
otherwise inconsistent action, is itself the non-defeasible necessary
and sufficient condition for the existence of the rule.

VII
Although my aims here are less normative than clarificatory, it is
worthwhile noting in conclusion the normative justification for a
presumptive approach to legal rules. Most of us believe that rules
serve valuable purposes, especially in the law. For some, these
purposes reside in notions of predictability and stability, although
it may be that the arguments for rules as devices for the allocation
of decision-making authority are even stronger. But whatever these
purposes, they cannot be served unless rules have some degree of
resistance to some decision-maker's determination of what now
appears to her to be the best all-things-considered decision.
Yet, as Hart noted, we also live as creatures saddled with an
imperfect ability to predict the future and an equally imperfect
ability to know what we want to do when we get there. We want
240 Frederick Schauer
to leave our options open, and accommodate for the possibility
that something might arise that we cannot now anticipate.
Because of this, we tend to avoid in the law a decisional apparatus
that looks like a jigsaw puzzle, with all of the caveats, qualifica-
tions, and exceptions to legal rules incorporated into the rules
themselves. Rather we often prefer to operate more vaguely, as
captured by Quine, who, paraphrasing I. A. Richards, noted that
'a painter with a limited pallette can achieve more precise repre-
sentations by thinning and combining his colours than a mosaic

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worker can achieve with his limited variety of tiles, and the skilful
superimposing of vaguenesses has similar advantages over the
fitting together of precise technical terms,.2S Similarly, the values
served by rules in the law are commonly best combined with the
competing values of flexibility in the face of an uncertain future by
adopting a form of decision-making in which the possibility of
defeat by unanticipated conditions remains open, but in which the
standards for defeat are specified in advance and adhered to faith-
fully. Hart and numerous followers have confused us by claiming
that rules necessarily have exceptions incapable of exhaustive
statement. If we say instead that rules may be designed to be
subject to defeat by events incapable of exhaustive statement, and
may still be (and serve the functions of) rules as long as the stan-
dards for defeat are heightened and not themselves subject to
defeat or unspecified exceptions, then we have moved closer to
locating a widely used and frequently desirable decision proce-
dure. 26

25 Willard Van Orman Quine, Word And Object (Cambridge, Mass., 1960),
127.
26 Earlier versions of this chap. have been presented at the American
Philosophical Association (Eastern Division), the University of Arizona, Abo
Akademi University (Turku), the Austinian Society, the Oxford-USC Institute for
Legal Theory, and the Dartmouth College Department of Philosophy. I have bene-
fited greatly from the comments of Raymond Belliotti, Pavlos Elevtheriadis, Robert
Fogelin, Risto Hilpinen, Joseph Raz, Sally Sedgwick, Scott Brewer, Natalie Stoljar,
and Walter Sinnott-Armstrong.