I. Hart’s concept of the ‘open texture’ of law
In this section, it is proposed to examine what Hart means when he asserts that thelaw has an ‘open texture’, and to lay out what consequences Hart saw as flowingfrom this – as he saw it - inescapable but ultimately beneficial feature of the law.
I (i) ‘Open texture of the law’: what does Hart mean?
of his seminal work,
The Concept of Law,
Hart puts forward the ideathat the law necessarily and inescapably has an ‘open texture’. By this, Hart meansthat no matter how carefully rules are drafted, there will always be some level of uncertainty surrounding their meaning and application. For any rule, there will becases which clearly fall within its ambit (Hart calls these ‘core’ cases), cases whichclearly do
fall within its scope, and cases for which it cannot conclusively besaid that the rule either applies or does not apply. Hart calls these third type of cases ‘penumbral’ cases, as they fall not within the plain ‘core’ of the rule’smeaning, but arguably could come within it’s wider, more uncertain ‘penumbra’ of application.According to Hart, this ‘open texture’ of the law - the potential of any rule to giverise to ‘penumbral cases’ when being applied – is both
.The open texture of the law is
for three principal reasons; theinevitably open texture of language, the relative ignorance of fact that people areburdened with, and the ensuing indeterminacy of aim that this entails.
(i) The open texture of language:
Drawing from the works of Waismann, Hart seeslanguage as inevitably open textured and indeterminate. Whilst generally retaininga core ‘plain’ meaning that most people would recognise, the exact meaning thatwords could be said to hold may differ from time to time depending on who isspeaking them, to whom they are addressed, and in what context. Accordingly,“there is a limit, inherent in the nature of language, to the guidance that wordscan provide”.
As the law is primarily made up of words which convey general
H. L. A. Hart,
The Concept of Law,
ed, Oxford University Press, 1961, 1994)at 124 - 154