Open texture and the possibility of legal interpretation

Law and Philosophy

Volumn 18, Issue 3, 1999, Pages 297-309

  Lyons, David ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033467311     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505245     Document Type: Article

References (15)

1. My arguments have little in common with Ronald Dworkin's in "The Model of Rules," University of Chicago Law Review 35 (1967), 14-46 (reprinted in Taking Rights Seriously [Harvard 1977]) or "No Right Answer?", New York University Law Review 53 (1978) 1-32 (reprinted in A Matter of Principle [Harvard 1985]).
2. My arguments have little in common with Ronald Dworkin's in "The Model of Rules," University of Chicago Law Review 35 (1967), 14-46 (reprinted in Taking Rights Seriously [Harvard 1977]) or "No Right Answer?", New York University Law Review 53 (1978) 1-32 (reprinted in A Matter of Principle [Harvard 1985]).
3. H.L.A. Hart, The Concept of Law (Oxford 1961; Second Edition 1994), chap. VII, sec. 1. (Parenthetical page references will be to the Second Edition.)
4. Note that there can be reasonable uncertainty not only about what things are vehicles, but also about what counts as "operating" a vehicle, "bringing" one into a park, under what circumstances a vehicle is truly "in" a park, etc.
5. Hart says, "for the purposes of this rule" and refers to "peace in the park." (129) But he discounts legislative intent as a basis for interpreting law. (136) 6 My reason for using this term will emerge in a moment.
6. Someone might suggest that this would be an undesirable policy - too lenient on law breakers. That would assume, however, that Ann violated the law, or in other words that bicycles are prohibited by the vehicle-banning rule - which open texture theory denies. Open texture theory implies that Ann has not in fact broken the law.
7. In his Postscript (included in the posthumously published Second Edition), Hart once again discounts "the ritual language used by judges and lawyers in deciding cases" and notes further that eminent judges and lawyers agree that law is sometimes indeterminate. (274) The question is not, however, whether there is some legal indeterminacy but whether it obtains wherever the received theory of law's open texture implies.
8. In the Postscript Hart suggests that "resistance to the claim that judges sometimes . . . make . . . law" is principally explained by "the importance characteristically attached by courts when deciding unregulated cases to proceeding by analogy so as to ensure that the new law they make, though it is new law, is in accordance with principles or underpinning reasons recognized as already having a footing in the existing law." (274) It is unclear, however, how this use of analogical reasoning explains the relevant systematic and uniform legal practice.
9. I'll abbreviate this hereafter by omitting "but less than decisive."
10. This seems the closest that Hart comes to embracing the "model of rules" that Dworkin attributes to him in "The Model of Rules." Contrary to Dworkin's claims, however, these points have no bearing on the essentials of legal positivism; nor do they flow from the essentials of Hart's theory of law, as developed in The Concept of Law, chaps. I-VI. (In the Postscript, however, Hart counts his open texture theory as "central to [his] theory of law." (259))
11. In the Postscript Hart says that "legal theory should avoid commitment to controversial theories . . . and should leave open . . . the question of the objective standing moral judgments." (253-254) Instead of avoiding such a commitment, however, Hart includes the contrary view in his legal theories. He accepts, for example, "that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values." (250) This implies that, in those cases, rules cannot be validated as law unless they satisfy the appropriate moral or evaluative criteria. When he insists, however, that "the law may be identified without reference to morality," (270) he in effect assumes that there are no determinate moral or evaluative criteria and incorporates into his legal theory the notion that moral judgments lack objective standing. This accords with his treatment of moral and evaluative criteria in his discussion of law's open texture.
12. In Ethics and the Rule of Law (Cambridge 1984), p. 52, I mentioned that relativism is implied by Hart's treatment of morality in The Concept of Law. As he soon after remarked to me, "Of course, I did not mean that." The same applies here.
13. Hart does not claim that all legal indeterminacies arise from open texture. He regards judicial precedents as loci of more radical indeterminacy, and he would no doubt regard conflicts between statutes or precedents, among other factors, as sources of indeterminacy. 15 Whether such an argument could succeed depends, of course, on overcoming objections I raised in Section A.
14. The next stage of my argument is sketched briefly in "Original Intent and Legal Interpretation," Australian Journal of Legal Philosophy 24 (1999) 1-25. Some suggestions of a subsequent stage may be found in the last two chapters of Moral Aspects of Legal Theory (Cambridge 1993).
15. The next stage of my argument is sketched briefly in "Original Intent and Legal Interpretation," Australian Journal of Legal Philosophy 24 (1999) 1-25. Some suggestions of a subsequent stage may be found in the last two chapters of Moral Aspects of Legal Theory (Cambridge 1993).