On Handling Rule-Exception Structures in Legal Reasoning

• Applicant: Dr. Lucia Fabiola Franke
• Subject Area: Principles of Law and Jurisprudence
• Term: since 2025
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 560004133

In German legal theory, there's a common belief that legal application can be reconstructed through logical deduction from legal norms and facts to legal outcomes (the “deduction postulate”). Since rule-exception structures would create a logical contradiction that doesn’t fit with this deduction postulate, they’ve largely been overlooked in German legal theory. However, with the increasing pluralization of law and the rise of digitalization, conflicts between legal norms—requiring resolution through rule-exception frameworks—are becoming more frequent. This makes it increasingly urgent for German legal theory to address the issue. This work argues that there are three structurally distinct types of rule-exception frameworks in legal argumentation. To support this claim, it draws on a number of Anglo-American legal and philosophical approaches that haven't yet been fully incorporated into German legal scholarship. The first part of the work critically examines the deduction postulate. It incorporates Makinson’s theories on non-classical deductive reasoning, Kaufmann and Brewer’s view of legal reasoning as an analogical process, Toulmin’s insights into the non-logical aspects of legal argumentation, Raz’s theory of legal norms as second-order reasons, and other contributions from the mostly English-language debate on the defeasibility of law. Together, these perspectives build a more complex picture of legal reasoning that allows for rule-exception structures. The analysis then distinguishes between three types of rule-exception frameworks: (1) Validity Exceptions: In cases where two norms conflict, the argument is made that one of the norms is invalid (e.g., legal reasoning after regime changes, as seen in the Nazi trials or cases involving East German border guards, as well as in certain constitutional law matters). (2) Applicability Exceptions: These occur when it's argued that the factual criteria of one of the conflicting provisions don't actually apply (e.g., when establishing negative elements of an offense). (3) Application Exceptions: In these cases, both conflicting norms are valid and applicable, but one isn’t applied because stronger reasons support the other (e.g., public policy considerations, analogy, or teleological reduction). As the distinctions are further developed and refined, the work emphasizes that the boundary between applicability and application is often fluid, but application questions can’t be reduced solely to issues of applicability. Examples are provided to show how the lack of differentiation between these types of exceptions in legal practice and doctrinal debate often leads to flawed reasoning.

• DFG Programme: Publication Grants