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Hart's 'open texture of law' theory; an analysis and evaluation.

Hart's 'open texture of law' theory; an analysis and evaluation.

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An essay for the 2011 Undergraduate Awards Competition by Emma Dunne. Originally submitted for Jurisprudence at Trinity College, Dublin, with lecturer Dr Oran Doyle in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Emma Dunne. Originally submitted for Jurisprudence at Trinity College, Dublin, with lecturer Dr Oran Doyle in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
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10/27/2013

 
Hart’s ‘open texture of law’ theory ; an analysis and evaluation.
“The open texture of law means that there are, indeed, areas of conduct wheremuch must be left to be developed by courts or officials striking a balance, in thelight of circumstances, between competing interests which vary in weight fromcase to case.… Here at the margin of rules and in the fields left open by thetheory of precedents, the courts perform a rule-producing function whichadministrative bodies perform centrally in the elaboration of variablestandards.”
1
Introduction
In the above extract from his 1961 work,
the Concept of Law 
2
,
Hart outlines histheory of ‘open texture’. The idea of the ‘open texture’ of the law is at the heartof Hart’s concept of law, both in terms of what the model has to say about thecharacter of the
law itsel
, and what it states about the nature of 
 judicial practice
. The core claim of Hart’s ‘open texture’ theory is that no rule, no matterhow carefully drafted, can ever provide an answer for all situations to which ajudge may be called to apply it. The law, as it is made up of rules, is thereforeinevitably ‘open textured’, and hence judges must sometimes make new law.In the years since it was first put forward, Hart’s theory has been subject to amultitude of criticisms. During the course of this essay it is proposed to examinetwo of what I feel are the most powerful critiques that have been levelled at Hart’s‘open texture’ theory. I will argue that whilst these criticisms are valid in thesense that they succeed in casting doubt on certain elements of Hart’s theory, theydo
not
succeed in their aim of demonstrating that the core claims of Hart’s theory– the indeterminacy and ‘open texture’ of the law and the consequent need forjudicial law making – are invalid.Part I of this essay will give detailed overview of Hart’s ‘open texture of the law’theory. Part II will focus on two main criticisms that have been levelled at thistheory, and will argue that they are interesting but ultimately not damaging toHart’s central claims. Part III will conclude.
1
H. L. A. Hart,
The Concept of Law,
(2
nd
ed, Oxford University Press, 1961, 1994),at p. 135
2
H. L. A. Hart,
The Concept of Law,
(2
nd
ed, Oxford University Press, 1961, 1994)
 
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?
In Chapter VII
3
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
not
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
unavoidable
and
necessary 
.The open texture of the law is
unavoidable
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”.
4
As the law is primarily made up of words which convey general
3
H. L. A. Hart,
The Concept of Law,
(2
nd
ed, Oxford University Press, 1961, 1994)at 124 - 154
4
 
Ibid,
at 126
 
standards to people that they are expected to follow, the law, like the words thatit consists of, can never provide exact and watertight guidance on any issue. Itinevitably will have some areas of open texture.
(ii) Human ignorance of fact:
the inability of people to see into the future andpredict all possible eventualities that may arise, what Hart terms our ‘relativeignorance of fact’, means that we cannot hope to formulate rules that provide forevery one of these possible occurrences. Thus our rules, because they are made bymen and not gods, will inevitably have an area of open texture.
(iii) Our ensuing indeterminacy of aim:
because we cannot foresee all situations towhich a rule may be called on to apply, we cannot know how we would want toresolve such situations. This indeterminacy of aim, a natural corollary of outignorance of fact, also contributes to law’s open texture.So the open texture of the law is, due to these factors, unavoidable
.
However,according to Hart this is not a cause for despair, as the open texture of law is also
necessary.
This is due to the manner in which the law affects its function of socialcontrol. The law, to function efficiently, must have a general character; it mustapply to classes of people generally and set down broad classes of actions that areprohibited or proscribed. If the law looked to address itself to each citizenindividually it would be unworkable and thus could not possibly succeed in its aimof general social control. The ‘open texture’ of the law allows rules formulated ingeneral terms and addressed to society at large to be sufficiently flexible so thatthey may plausibly apply to all citizens individually. In this way the law, thanks toits ‘open texture’, can fulfil its function of regulating the conduct of all membersof society individually whilst addressing the public generally.So the open texture of the law is both unavoidable and necessary. It is also
all pervasive
, as it is evident in all forms of laws, not just written statutes. Hart seesthe law as made up of ‘rules’, both primary and secondary. He notes that two maindevices are used to communicate these legal rules to the citizens who are bound bythem; precedents and statutes. Both of these forms of rule necessarily exhibitsome areas of open texture. Statutes, no matter how carefully worded, willnecessarily be to some extent open textured due to the inevitably ambiguousnature of language. Furthermore, owing to the fact that some areas of human

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