JUDGES AND EXCEPTIONS: DEFEASIBILITY OF NORMS BY JUDICIAL ACT

Abstract

The purpose of the paper is to show that the introduction of exceptions in rules by judges is a manifestation of creative role of courts of law that can be explained as an act of defeating norms. In order to achieve this objective, I will carry out the following steps: i) I will formulate a distinction of normal and abnormal cases in order to indicate what type of cases the judges consider it justified to except a rule; and ii) I will present two types of analysis of the operations carried out by the judges to justify the defeat of a rule, the first one based on the idea of loss of applicability by the creation of a hierarchy between norms, and the second one based on the idea of modification of the scope of the norm.