Part 1 (The Open Texture of Law): Hart starts the chapter by saying that laws should pertain to specific classes of persons or acts, instead of focusing on each individual separately, since laws require certain conducts for each class given the multitude of individuals. He talks about two principal devicesfor the communication of such general standards of conduct, namely the maximal (legislation) and the minimal (precedent) use of general classifying words. Communication by example, such as “do as I do,” leaves plenty to be interpreted by the person it is being communicated to. Things such as the manner it is to be done (Should I use my right or left hand? Could I do it faster?) is not clearly communicated. In contrast, the communication of general standards by explicit general forms of language, such as “Every man must take off his hat on entering the Church,” is clear, dependable, and certain. There is no room for other interpretation given the occasion that was mentioned. The person the rule is communicated to can apply it by himself to himself. These two situations contemplate the difference between jurisprudenceand legislation.
Hart then proceeds to say that uncertainties will always be continually thrown up when talking about expressions, such as in the case of whether or not an airplane can be categorized as a motor vehicle. Canons of interpretationmay never eliminate these uncertainties, but it will help in reducing it. General terms (plain cases) would be useless as a medium unless there were such familiar, generally unchallenged cases. However, in cases of doubts, the choices among open alternatives must be made by whoever is to resolve them. The language of the rule seems now only to mark out an authoritative example, namely that constituted the plain case – very much the same way precedents are made. The discretion for interpreting a certain rule then is left very wide by the use of the language it is to be interpreted from. In the case of legal rules, the criteria of relevance and closeness of resemblance depend on many complex factors running through the legal system and on the aims or purpose which may be attributed to the rule.
Both precedent andlegislationwill, at some point where their application is in question, prove indeterminate, which Hart calls as an open texture.The creation of the rules created are then predicated from the will of the makers who would want to have open alternatives for their interpretation. Hart says that we labour under two connected handicaps whenever we seek to regulate, some sphere of conduct by means of general standards, namely our relative ignorance of factand our relative indeterminacy of aim. Plainly, human legislators can have no knowledge of all the possible combinations of circumstances which the future may bring, this bringing up a relative indeterminacy of aim. What may be easily determinable at the infancy of a rule (e.g. Motor vehicles include cars) may become indeterminable through combinations of other concepts (e.g. Are airplanes included as “Motor Vehicles”?).
Different legal systems may either ignore or acknowledge more or less explicitly such a need for the further exercise of choice in the application of general rules to particular cases. Hart then introduces the concept of formalism orconceptualism. This consists in seeking to disguise and to minimize the need for such choice, once the general rule has been laid down. One way of doing this is to freeze the meaning of the rule so that its general terms must have the same meaning in every case where its application is in question. To do this is to secure a measure of certainty or predictability at the cost of blindly prejudging what is to be done in a range of future cases. We are then forced by this technique to include in the scope of a rile cases which we would wish to exclude in order to give effect to reasonable social aims. Hart then says that all systems compromise two social needs: the need for certain rules which can safely be applied by private individuals to themselves without official guidance, and the need to leave open for later settlement by an informed official choice.
Sometimes, the sphere to be legally controlled is recognized from the start as one in which the features of individual cases will vary so much in socially important but unpredictable respects, that uniform rules to be applied from case to case without further official direction cannot usefully be framed by the legislature in advance. So this is why rules are usually left to be executed by another arm (such as the case of the executive department). The legislature just provides for general standards.
Another technique is used where the sphere to be controlled is such that it is impossible to identify a class of specific actions to be uniformly done and to make them the subject of a simple rule, yet the range of circumstance convers familiar features of common experience. This technique leaves to the individuals the interpretation of rules, but ultimately gives courts the discretion to check if the interpretation as within the bounds of their purpose. An example would be the application of the use of the standard of due care in cases of negligence, where precedents dictate the typical examples of due care. What we strive for is to ensure: (1) that precautions will be taken which will avert substantial harm, yet (2) that the precautions are such that the burden of proper precautions does not involve too great a sacrifice of other respectable interests.
Hart gives the example of the killing of a human being for the purpose of giving “due respect for human life.” It is acknowledged that there are various reasons for killing a human life, but very few factors (e.g. self-defense) appear to us that outweigh or make us revise our estimate of the importance of protecting human life.
This shows then that the communication of general rules by authoritative examples brings with it indeterminacies of a more complex kind. Hart says that we shall not offer any fresh general description, but merely attempt to characterize briefly the area of open texture and the creative judicial activity within it. The use of precedent must allow a place for the following pairs of contrasting facts: First, there is no single method of determining the rule for which a given authoritative precedent is an authority; Second, there is no uniquely correct formulation of any rule to be extracted from cases; Thirdly, whatever authoritative status a rule extracted from precedent may have, it is compatible with the exercise by courts that are bound by it of the following two types of creative or legislative activity.
At the margin of rules and in the fields left open by the theory of precedents, the courts perform a rule-producing function which administrative bodies perform centrally in the elaboration of variable standards (i.e. stare decisis).
Part 2 (Varieties of Rule-Scepticism):Hart starts this section by introducing the concept of rule-scepticism, or the claim that talk of rules is a myth cloaking the truth that law consists simply of the decisions of courts and the prediction of them, can make a powerful appeal to a lawyer’s candor. In a community of people who understood the notions of a decision and a prediction of a decision, but not the notion of a rule, the idea of an authoritative decision would be lacking and with it the idea of a court. In other versions of this theory, it is conceded that if there are courts, then there must be legal rules which constitute them (following the discussions from the previous chapters on primary and secondary rules).
The mentioned objections though important do not apply to the theory in all forms. It may well be that rule-scepticism was never intended as a denial of the existence of secondary rules conferring judicial or legislative power, and was never committed to the claim that these could be shown to be nothing more than decisions or their predictions. Though this is the case (where we suppose rules are merely predictions of the decisions of the courts), there are instances where it is obviously false, such as in the case when we consider the internal point of view discussed in one of the previous chapter, where laws function not merely as habits or basis for prediction, but as accepted legal standards of behaviour. Following this line of thought, individuals, though recognizing the external point of view, go on with their lives continuously expressing in normative terms their shared acceptance of the law as a guide to conduct.
The concern with rule-scepticism then is only on the fact that it is a theory of the function of rules in judicial decisions. So far as the courts are concerned, there is nothing to circumscribe the area of open texture: so that it is false, if not senseless, to regard judges as themselves subject to rules or boundto decide cases as they do. The theory in this form draws support from different considerations of very different weights. A sceptic can be sometimes a disappointed absolutist, such as when he found that the rules are not all they would be in a formalist’s heaven. The sceptic’s conception of what is for a rule to exist, may thus be unattainable ideals and when he discovers that it is not attained by what are called rules, he expresses his disappointment by the denial that there are, or can be, any rules. The dilemma (though hart conceded this to be a false one) presented then is that either rules are what they would be in the formalist’s heaven, or there are no rules, only predictable decisions or patterns of behaviour.
When a person accepts a rule as binding and as something he and others are not free to chance, he may see what it requires in given situation quite intuitively, and do that without first thinking of the rule and what it requires (e.g. when people stop when the traffic lights turn red). It is this setting of our behaviour among circumstances (NOT its accompaniment by explicit thought of the rule) that is necessary to distinguish an action which is genuinely an observance of a rule from one that merely happens to coincide with it.
Hart then closes this section by saying that the last but most interesting form of rule-scepticism does not rest either on the open character of legal rules or on the intuitive character of many decisions, but on the fact that the decision of a court has a unique position as something authoritative, and in the case of supreme tribunals, final.
Part 3 (Finality and Infallibility in Judicial Decision): Continuing from the last thought introduced in the previous section, a supreme tribunal has the last word in saying what the law us and, when it has said it, the statement that the court was wronghas no consequences within the system (i.e. no one’s rights or duties are thereby altered). Hart makes the statement that the law is what the courts say it is. Such as in competitive games, the two sides can determine through their own judgment the rules of the game, but when an official scorer comes into the picture, the concept of secondary rules also come into play. In this sense, the score is what the scorer says it is, but it is important to see that the scoring ruleremains what it was before, and it is the scorer’s duty to apply it as best he can. The statement then would be false if there was no rule for scoring beforehand.
In cases where the scorer may make mistakes (e.g. in cases where he/she is drunk, wantonly violate his duties, etc.), there must be provisions that may be made for correcting his rulings by appeal to a higher authority, but this must end somewhere in a final, authoritative judgment. Once the score has become final, any other scores put forward by non-officials are considered unmeritorious and not to be taken into account for other considerations. When this is taken into account, it can be said that the scorer’s rulings would be both final and infallible, and the question whether they were fallible or infallible would be meaningless, since there would actually be nothing for him to get right orwrong.
The second lesson is concerned with the decision that touches more fundamental matters. We are able to distinguish a normal game from the game of scorers’ discretionsimply because the scoring rule, though it has, like other rules, its area of open texture where the scorer has to exercise a choice yet has a core of settled meaning. It is this that makes it true to say that the scorer’s rulings are, though final, not infallible. There is a limit to the extent to which tolerance of incorrect decisions is compatible with the continued existence of the same fame, and this has an important legal analogue. One mistake may be tolerated, but multiple indiscretions may not be appreciated. These distinctions should be considered when we are appraising the form of rule-scepticism that rests on unique status of a court’s decision as a final, authoritative statement of what the law is in a particular case.
Whatever courts decide stands until altered by legislation, and over the interpretation of that, courts will again have the same last authoritative voice. Nonetheless, there still remains a distinction between a constitution which, after setting up a system of courts, provides that the law shall be whatever the supreme court thinks fit, and the actual constitution of any modern state. No rules can be guaranteed against break or repudiation, for it is never psychologically or physically impossible for human beings to break or repudiate them, and if enough do so for long enough, then the rules will cease to exist. But the existence of rules at any given time does not require that there should be these impossible guarantees against destruction.
Hart then closes this part by talking about the positive contentions that rules are the predictions of courts’ decisions It is plain and has often been remarked that whatever truth there may be in this, it can at best apply to the statements of law ventured by private individuals or their advisers. When the area of open texture is reached, very often all we can profitably offer in answer to the question: “What is the law on this matter?” is a guarded prediction of what the courts will do. In the latter case, the assumption is that the courts regard legal rules not as predictions, but as standards to be followed in decisions, determinate enough to limit their discretion.
Part 4 (Uncertainty in the Rule of Recognition): Hart says that formalism and rule-scepticism are great exaggerations, salutary where they correct each other, and the truth lies between them. This chapter of the book focused on the uncertainty, not of particular legal rules, but of the rule of recognition and so of the ultimate criteria used by courts in identifying valid rules of law. Sometimes the resolution of these doubts requires only the interpretation of another rule of law which conferred the legislative power, and the validity of this may not be in doubt. Hart says that this part of the chapter focuses on the legal validity or legal competence of the supreme legislature, such as in the statement whatever the Queen in parliament enacts is law. This statement opens the question of what it means for something to be enacted by parliament.
It is important to see that no necessity of logic, still less of nature, dictates that there should be such a Parliament. It is only one arrangement among others, equally conceivable, which has come to be accepted with us as the criterion of legal validity. Among these others is the concept of sovereignty. This is the principle that Parliament should not be incapable of limiting irrevocably the legislative competence of its successors but should have this wider self-limiting power. It in effect makes a choice between a continuingomnipotence the exercise of which can only be enjoyed once, such as in the concept when we talk about the omnipotence of God.
Questions can be raised however about it to which at present there is no answer which is clearly right or wrong. These can be settled only by a choice, made by someone to whose choices in this matter authority is eventually accorded. Such indeterminacies in the rule of parliamentary sovereignty present themselves in the following way. Plainly, if this device were valid, Parliament could achieve by its use very much the same results as those which the accepted doctrine, that Parliament cannot bind its successors, seems to put beyond its power.
On the other hand, one form of formalist error may perhaps just be that of thinking that every step taken by a court is covered by some general rule conferring in advance the authority to take it, so that its creative powers are always a form of delegated legislative power. The manipulation by English courts then of the rules concerning the binding force of precedent is perhaps most honestly described in this last way as a successful bid to take powers and use them. Hart closes this chapter by stating the the statement that the court always had an inherent power to rule in this way would surely only be a way of making the situation look tidier than it really is. We should then welcome the rule-sceptic, as long as he does not forget that it is at the fringe that he is welcome, and does not blind us to the fact that what makes possible these striking developments by courts of the most fundamental rules is the prestige gathered by courts from their unquestionably rule-governed operations over the vast, central areas of the law.
Straight from the Hart 