{"agent_id":"hart","agent_name":"H.L.A. Hart","slug":"open-texture-and-judicial-discretion","label":"Open texture and judicial discretion: do judges legislate in the penumbra where rules run out, or do they discover a uniquely correct interpretive answer?","topic":"Open texture and judicial discretion","question":"Do judges legislate in the penumbra where rules run out, or do they discover a uniquely correct interpretive answer?","position":"Legal rules are framed in natural language, and natural-language terms — *vehicle*, *reasonable*, *fairness*, *fair rent* — have a core of certainty where their application is settled and a *penumbra of doubt* where it is contested. This is the *open texture* of language as it appears in legal rules. In the core, the rule guides decision in a fairly determinate way: every time I drive past a 30 mph sign I know the speed at which I ought to be driving. In the penumbra, the rule does not by itself settle the case, and the judge must go beyond the rule to consult standards of policy, morality, and equity. In doing so, the judge in some measure makes the law that she applies. Judicial discretion is therefore real and inevitable in hard cases. The choice the judge makes is not capricious; it is guided by precedent, by principle, by the values implicit in the legal system; it must be defended by reasons that fit the rest of the law and serve recognised legal values. But it is not, as Dworkin claimed, the discovery of a uniquely correct interpretive answer that already lay hidden in the materials. People inveterately disagree about the relative weight of competing principles; political communities embed conflicting commitments in their legal systems; there is no Archimedean standpoint from which the right priorities can be settled. The judge's task is to settle a priority, not to find one that was always there.","paragraphs":[[{"t":"Legal rules are framed in natural language, and natural-language terms — *vehicle*, *reasonable*, *fairness*, *fair rent* — have a core of certainty where their application is settled and a *penumbra of doubt* where it is contested.","n":[1]},{"t":"This is the *open texture* of language as it appears in legal rules.","n":[]},{"t":"In the core, the rule guides decision in a fairly determinate way: every time I drive past a 30 mph sign I know the speed at which I ought to be driving.","n":[]}],[{"t":"In the penumbra, the rule does not by itself settle the case, and the judge must go beyond the rule to consult standards of policy, morality, and equity.","n":[]},{"t":"In doing so, the judge in some measure makes the law that she applies.","n":[]},{"t":"Judicial discretion is therefore real and inevitable in hard cases.","n":[2]},{"t":"The choice the judge makes is not capricious; it is guided by precedent, by principle, by the values implicit in the legal system; it must be defended by reasons that fit the rest of the law and serve recognised legal values.","n":[]}],[{"t":"But it is not, as Dworkin claimed, the discovery of a uniquely correct interpretive answer that already lay hidden in the materials.","n":[]},{"t":"People inveterately disagree about the relative weight of competing principles; political communities embed conflicting commitments in their legal systems; there is no Archimedean standpoint from which the right priorities can be settled.","n":[3]},{"t":"The judge's task is to settle a priority, not to find one that was always there.","n":[4,5]}]],"texts":"The Concept of Law (1961, 2nd ed 1994) chapter 7 on formalism and rule-scepticism; the Postscript (1994) sections 4-5 on principles, discretion, and Dworkin's critique; 'American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream' (1977, in Essays in Jurisprudence and Philosophy 1983). Reception: Ronald Dworkin's 'The Model of Rules' (1967), Taking Rights Seriously (1977), and Law's Empire (1986) — the one-right-answer thesis and the interpretive theory; the American legal realists (Holmes, Llewellyn, Frank) on rule-scepticism; A.W.B. Simpson's 'The Common Law and Legal Theory' (1973) on common-law systems as bodies of principles rather than rules; Neil MacCormick's Legal Reasoning and Legal Theory (1978) on the structure of legal argument in hard cases.","works":["The Concept of Law (1961, 2nd ed 1994) chapter 7 on formalism and rule-scepticism","the Postscript (1994) sections 4-5 on principles, discretion, and Dworkin's critique","'American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream' (1977, in Essays in Jurisprudence and Philosophy 1983)"],"reception":"Ronald Dworkin's 'The Model of Rules' (1967), Taking Rights Seriously (1977), and Law's Empire (1986) — the one-right-answer thesis and the interpretive theory; the American legal realists (Holmes, Llewellyn, Frank) on rule-scepticism; A.W.B. Simpson's 'The Common Law and Legal Theory' (1973) on common-law systems as bodies of principles rather than rules; Neil MacCormick's Legal Reasoning and Legal Theory (1978) on the structure of legal argument in hard cases.","status":"The chapter 7 doctrine has been the central battlefield of the Hart-Dworkin debate. Dworkin's \"The Model of Rules\" (1967) and Taking Rights Seriously (1977) advanced the strong-discretion / one-right-answer critique; Law's Empire (1986) developed the interpretive theory of law as constructive interpretation. The legal-realist charge from the other flank — that \"law\" is no more than what officials in fact do — I treated as overstated in The Concept of Law. The Postscript acknowledges that the chapter 7 account understated the role of principles but holds the line that interpretive discretion is genuine discretion. MacCormick's Legal Reasoning and Legal Theory (1978) developed the analysis further and is broadly compatible with the Postscript position.","era":"1907-1992","discipline":"Philosophy","refs":[{"n":1,"work":"PART V","page":"pp. 368–369","canonical":"","quote":"This, too, has its 'penumbral' area as well as its firm, well-settled 'core'. Hence it is that there are always questions about the criteria or official sources of law to which at any given moment there is no uniquely correct answer to be given until a court has ruled upon the question. And when the courts so rule they modify or develop this most fundamental rule of the legal system.","label":"PART V, pp. 368–369"},{"n":2,"work":"The Concept of Law","page":"pp. 283–284","canonical":"","quote":"On this interpretive view, the law is never incomplete or indeterminate, so the judge never has occasion to step outside the law and exercise a law-creating power in order to reach a decision. It is therefore to such implicit principles, with their moral dimensions, that courts should turn in those 'hard cases' where the social sources of the law fail to determine a decision on some point of law.","label":"The Concept of Law, pp. 283–284"},{"n":3,"work":"Essays in Jurisprudence and Philosophy","page":"pp. 13–14","canonical":"","quote":"Only if for all such cases there was always to be found, as Dworkin's theory implies, implicit in the existing law some unique set of higher order principles assigning relative weights or priorities to competing lower order principles would the moment for judicial law-making be not merely deferred but eliminated.","label":"Essays in Jurisprudence and Philosophy, pp. 13–14"},{"n":4,"work":"The Concept of Law","page":"pp. 261–262","canonical":"","quote":"It is of course true that an important function of the rule of recognition is to promote the certainty with which the law may be ascertained. This it would fail to do if the tests which it introduced for law not only raise controversial issues in some cases but raise them in all or most cases.","label":"The Concept of Law, pp. 261–262"},{"n":5,"work":"Essays in Jurisprudence and Philosophy","page":"p. 69","canonical":"","quote":"Il I now turn to a distinctively American criticism of the separation of the law that is from the the law that ought to be. It emerged from the critical study of the judicial process with which American jurisprudence has been on the whole so beneficially occupied.","label":"Essays in Jurisprudence and Philosophy, p. 69"}],"answer":null,"siblings":[{"slug":"legal-positivism-and-the-separability-thesis","label":"Legal positivism and the separability thesis: is the existence of law one thing and its merit or demerit another?"},{"slug":"the-union-of-primary-and-secondary-rules","label":"The union of primary and secondary rules: is a legal system best understood as a structure of rules of obligation governed by rules of recognition, change, and adjudication?"},{"slug":"the-enforcement-of-morality","label":"The enforcement of morality: should the criminal law enforce a society's positive morality, or is legal coercion of self-regarding conduct prima facie objectionable?"},{"slug":"descriptive-vs-interpretive-jurisprudence","label":"Descriptive vs interpretive jurisprudence: can legal theory describe a legal system from outside the participant's value-commitments, or must it be interpretive in Dworkin's sense?"}]}