H.L.A. Hart and the "Open Texture" of Language

Abstract

Today the concept of "open texture" is better known by works of the legal philosopher, H. L.A. Hart. But he expressly borrowed it from the philosopher of language, Friedrich Waismann. Waismann’s "open texture" had been part of an important challenge to verificationism and phenomenalism, grounded on the simple point that our definitions, our rules for usage, will often fail to guide us when we face the truly unusual. Our rules for language usage assume certain standard background conditions, and do not offer resources when those background conditions no longer prevail. Waismann’s "open texture" thus essentially refers to the potential vagueness of terms when applied in extreme circumstances, rather than their current vagueness under normal circumstances. Hart’s use of "open texture" in his book, "The Concept of Law", was offered as part of his argument for judicial discretion in interpreting and applying legal rules. Hart borrows the label from Waismann and cites to Waismann as a reference. However, Hart’s application of "open texture" was significantly different from Waismann’s understanding, and Hart’s work has been misunderstood in part because those differences have been underestimated. For Hart, the "open texture" of words and rules describes what is usually labeled as "vagueness," the uncertainty of application with borderline cases and novel situations (though novelty that falls short of the truly unexpected — cats that grow to nine feet tall or keep disappearing and reappearing — with which Waismann was concerned). Hart builds an argument for judicial discretion in part on (his understanding) of "open texture." In the borderline or unusual case, one cannot determine if the term (and the rule) should be used.

Transnational Legal Communication: Towards Comprehensible and Consistent Law

“…Waismann boldly considers hypothetical situations, the emergence of which would require rejecting the fundamental assertions of our knowledge. This is precisely the important difference between the original grasp of Waismann's open texture and its reinterpretation presented by Herbert L. A. Hart (Bix 1991). Hart confines himself to analysing situations that have not yet happened, but our current knowledge does not suggest that they cannot happen in the future.…”

Human Judgment in algorithmic loops: Individual justice and automated decision‐making

“…Legal scholars commenting on the importance of human judgment over algorithmic decision‐making have sometimes fleshed out such arguments with appeals to legal philosophy and jurisprudential theory (Leith 1986; Edwards 1995; Leenes 2003; Grimmelmann 2004; Citron 2007; Le Sueur 2015; Cobbe 2018; Hildebrandt 2018; Noto La Diega 2018; Oswald 2018). They have typically drawn on distinctions between rules versus discretion , and related distinctions between, for example, rules and principles or standards (Schuck, 1992), between formalized application of law and its open‐ended interpretation (Bix 1991); or between those figures most associated with differing positions, for example, “the Hart‐Dworkin debate” (Shapiro 2007).…”

“…While Dworkin did not attribute his particularism to any particular philosophical view, Hart's position was explicitly influenced by Waismann's critique of the philosophical thesis of logical positivism (Waismann 1968; Bix 1991). The logical positivists believed that every meaningful sentence in a language could be treated as a hypothesis which could (in theory) be verified through scientific (i.e.…”

Human Judgement in Algorithmic Loops; Individual Justice and Automated Decision-Making

“…They have typically drawn on distinctions between rules versus discretion, and related distinctions between e.g. rules and principles or standards 00/00/0000 00:00:00; between formalised application of law and its open-ended interpretation (Bix, 1991); or between those figures most associated with differing positions, e.g. 'the Hart-Dworkin debate' (Shapiro, 2007).…”

“…While Dworkin did not attribute his particularism to any particular philosophical view, Hart's position was explicitly influenced by Waismann's critique of the philosophical thesis of logical positivism (Waismann, 1968;Bix, 1991). The logical positivists believed that every meaningful sentence in a language could be treated as a hypothesis which could (in theory) be verified through scientific (i.e.…”