Hla Hart Chapter 7.docx

FORMALISM AND RULE SKEPTISM 

     

THE OPEN TEXTURE OF LAW 1. In any large group ,general rules,standards and principles must be the main instrument of social control and not particular directions given to each individual separately 2. Law could not exist if it were not possible to communicate general standards of conduct ,which multitudes of individual could understand. 3. Hence the law must predominantly but not exclusively refer to classes of persons, and to classes of acts, things and circumstances. 4. Two principal devices have been used for the communication of such general standards of conduct. 5. One of them makes a maximal use of general classifying words 6. And the other makes minimal use of general classifying words 7. The first is legislation and the second is precedent 8. This two can be seen in non legal situations : For example: one father before going to church says to his son that “every man and boy must take off his hat on entering the church” And another baring his head as he enters the church says that “Look:this is the right way to behave in such occasions” 9. The communication of standards of conduct or teaching of standards of conduct may take different forms 10. Instead of the child being told on the particular occasion to regard what his father did on entering the church as an example of a right thing to do , the father assumed that the child would regard him as an authority on proper behaviour and would watch him in order to learn the way to behave 11. This closely resembles the legal use of precedent 12. To approach further the legal use of precedent, we must suppose that the father is conceived by himself and others to subscribe to traditional standards of behaviour and not to be introducing new ones 13. Communication in all its forms,though accompanied by some general verbal directions such as “Do as I do” may leave open a range of possibilities and hence doubt : How much of the performance must be imitated? Does it matter if the left hand is used,instead of the right hand to remove the hat? That it is done slowly or smartly? That it is put under the seat? 14. These are all the variants of questions the child might ask himself What precisely is it about his conduct to be my guide? In what way must my conduct resemble his to be right? 15. In attending to the conduct the child is guided by common sense and knowledge of the general kind of things and purposes which adults think important and appreciation of the general character of the occasion that is (going to church) and kind of behaviour appropriate to it. 16. The communication of general standards of conduct by explicit general forms of language (Every man must take off his hat on entering the church) seems CLEAR, DEPENDABLE,CERTAIN 17. General guides to conduct are here identified in words/verbally extricated

18. In order to know what to do on other occasions,the child need not guess what is intended or what will be approved 19. He need not be left to speculate the way in which the conduct must resemble 20. He has instead a verbal description on what he must do in the future and when he must do it 21. He is not faced with the alternative of choosing at his peril or seeking further authoritative guidance 22. He has a rule which he can apply by himself to himself 23. Much of the jurisprudence of this century has consisted of a progressive realization that the distinction between uncertainties of communication by authoritative example (precedent) and the certainties of communication by authoritative general language (legislation) is far less firm than it suggests 24. Even when VERBALLY FORMULATED general rules are used,uncertainties as to the forms of behaviour may exist in particular cases 25. Hart states of the limits inherent in the nature of language and thus limits in guidance which general language can provide 26. Does “vehicle” used here include bicycles,airplanes,roller skates? 27. This are fact situations ,continually thrown up by nature or human invention 28. Canons of “interpretation” cannot eliminate but only can diminish this uncertainties 29. For these canons are themselves general rules for the use of language (literal rule,golden rule and mischief rule) 30. The plain case where the general terms seems to need no interpretation and thus the recognition seems unproblematic and automatic are only the familiar general terms ,constantly recurring in similar context. Here there is a general agreement in judgements as to the applicability of the classifying terms 31. This general terms would be useless as a medium of COMMUNICATION unless there were such familiar generally unchallenged cases. 32. If where doubts concerning general terms are to be resolved ,something in the nature of a choice between open alternatives must be made by whoever is to resolve them 33. Hart states that an authoritative general language in which a rule is expressed may guide only in an uncertain way much as an authoritative example does.(Difference between general language and examples) 34. The sense that the language of the rule will enable us to pick out easily recognizable instances, subsumption and the drawing of a syllogistic conclusion where there is no need to determine what is the right thing to do (ideal situation) 35. Where there is a question whether the rule prohibiting the use of vehicles in the park is applicable to some combination of circumstances in which it appears indeterminate 36. All that person called upon to answer can do is to consider whether the present case resembles the plain case “sufficiently” in “relevant” respects 37. The discretion left to him by language is very wide, so that if he applies the rule ,the conclusion even though not arbitrary or irrational is in effect a choice 38. He chooses to add to a line of cases,a new case because of its resemblance which can reasonably be defended as both legally relevant and sufficiently close. 39. Hart states that whichever device (precedent or legislation) is chosen for the communication of standards of behaviour,however smoothly they work over a great

40.

41. 42.

43. 44.

45.

46.

47.

48.

amount of cases,will at some point on their application be indeterminate.They will have what has been termed as an open texture In the case of legislation as a general feature of human language ,uncertainty is a price to be paid for the use of general classifying terms in any form of communication concerning matter of fact. Hart states that natural language like English are when used, irreducibly open textured Hart gives reasons on why we should not cherish , the conception of rule so detailed that when deciding whether it applied to a particular case, was always settled in advance and never involved during the application, the choice between open alternatives Hart states that there is necessity for such choice as we are men not gods When we seek to regulate ,unambiguously and in advance some sphere of conduct account must be taken of two connected handicaps that is :  Relative ignorance of fact and relative indeterminacy of aim : Hart states that if the world which we are in are only characterized by a finite number of features and that this was known to us,the provision can be made in advance for every possibility. Rules could be made and the application in cases will never call upon a further choice.Everything could be known and since it could be known ,something could be done and specified in advance by the rule He states that this could be a world fit for mechanical jurisprudence Hart states that however ,human legislators have no such knowledge of all possible combinations of circumstances which the future may bring thus bringing with it a relative indeterminacy of aims For example: a general rule of conduct has been framed that is a rule that no vehicle may be taken into the park :  Language used (vehicle) in this context fixes necessary conditions which anything must satisfy to be within its scope. For instance be mechanically propelled, travel on land etc.  Certain clear examples of what is certainly within its scope may be present in our minds For instance : The motor car ,the bus and motor cycle  We have settled the question that peace and quiet in the park is to be maintained at any cost and at any rate  Until we have put the general aim of peace in the park into conjunction with those cases, which we did not or could not envisage ,our aim is indeterminate  When the unenvisaged cases does arise, we confront the issue at stake and can settle the question by choosing the competing interest in the way that best satisfies us.Here the aim is more determinate. Different legal systems or same systems at different times,may either ignore or acknowledge a need of further exercise of choice , in the application of general rules to particular cases. The opposite is that of formalism or conceptualism which is an attitude in verbally formulated rules . They seek to disguise and to minimize the need for such a choice when a general rule has been laid down.

49. One way of doing so is to freeze the meaning of the rule so that the general terms will have the same meaning in every case 50. To secure it further, Hart states, that we may fasten certain features present in the plain case, and state that this are both necessary and sufficient to bring them within the scope of the rule 51. By doing this is to secure CERTAINTY and PREDICTABILITY 52. But this comes with a price/cost :blindly prejudging what is to be done in a range of future cases. 53. Hart states that we succeed in settling in advance,issues which can only reasonably be settled when they arise and are identified. 54. The rigidity of our classifications will thus war with our aim in having or maintaining the rule. 55. In other words, by fixing a meaning to the general terms,when a future case arises, there is a war in either following the rigid meaning set or furthering the aims of the rule. 56. When a general term is given a same meaning not only in every application of a single rule ,but whenever the general term appears in any rule of the legal system :the use of this process is known as jurists’ “heaven of concepts” 57. No effort is thus required to interpret the term in light of different issues in its various occurrences. 58. All systems in different ways compromise between two social needs. 59. The need for certain rules : which can be safely applied by private individuals to themselves without fresh official guidance or weighing up of social issues 60. And the need to leave open for later settlement, issues which can only be appreciated and settled when they arise in concrete cases. 61. In some legal system at some periods ,it may be that too much is sacrificed for certainty and that judicial interpretation of statutes and precedent is too formal and so fails to respond to cases which can only be considered in light of social aims 62. In other systems,too much is treated by the courts as perennially open or revisable in precedent. 63. To escape the oscillation between extremes between formalism and open texture : we need to remind ourselves that human inability to anticipate the future is at the root of this indeterminacy of general terms. 64. Thus legal system caters for this inability by a corresponding variety of techniques. 65. Uniform rules to be applied from case to case without further official direction cannot usefully be framed by the legislature in advance. 66. To regulate such a sphere the legislature sets up very general standards and then delegates to an administrative ,rule making body ,the task of fashioning rules adapted to their special needs 67. For instance : Legislature may require an industry to maintain certain standards , to charge only a fair rate or to provide safe systems of work. 68. Instead of leaving different enterprises to apply this vague ambiguous standards to themselves, it is best that an administrative body has by regulation specified what FOR A GIVEN INDUSTRY is to count as a “fair rate” or a “safe system”. 69. This rule making power may be exercisable only after something like a judicial inquiry into the facts about a particular industry.

70. Even with plain general standards there will be indisputable examples as to what does or does not satisfy them. Some extreme cases of what is or is not a fair rate or safe system will always be identifiable ab initio 71. At one end the rate will be so high that it will hold the public up to ransom for a vital service ,while yielding the entrepreneurs vast profits. 72. And on the other hand the rate will be so low that it fails to provide an incentive for running the enterprise. 73. Both of this in different ways would defeat any aim of regulating rates. 74. …… 75. Hart states that  Firstly,there is no single method of determining a rule  Secondly,there is no authoritative or uniquely correct formulation of any rule to be extracted from cases . There may be an agreement that a given formulation of precedent may be adequate. (It may not be a correct formulation but it is agreed as being an adequate formulation)  Thirdly, whatever authoritative status a rule extracted from precedent may have ,it is compatible with the exercise of the courts that are bound by it. However, courts deciding a later case may reach an opposite decision to that in precedent by narrowing the rule extracted from the precedent ….This is known as distinguishing the earlier case where it involves finding some legally relevant difference between it and the present case.  English legal system has produced by its use a body of rules of which a vast number ,which are as determinate as any statutory rule  They can now only be altered by statute 76. The open texture of law means that there are areas of conduct where much must be left to be developed by the courts or officials striking a balance, in light of circumstances between competing interest which vary in weight from case to case 77. However ,the life of the law to a large extent consists of determinate rules which unlike the application of variable standards do not require from them a fresh judgement from case to case. 78. At the margin of rules and in 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 79. Besides in a system where stare decisis is firmly acknowledged,the function of the court is very like the exercise of delegated rule making powers by an administrative body 80. Hart states that however courts often disclaim such creative function and insists that the proper task of statutory interpretation and the use of precedent is to search for the intention of the legislature and the law that already exist. 81.