Krizia Camille P.

Nicolas
Chapter 7 Summary

According to Hart, the main instrument in social control are general rules,
standards, and principles, not specific, separate instructions given to individuals.
This is “why the law must predominantly, but by no means exclusively, refer to
classes of person, and to classes of acts, things, and circumstances.” In order to
propagate and disseminate these general rules, two principal devices are used:
legislation and precedent. Legislation is understood as “the communication of general
standards by explicit general forms of language.” It is the law understood in general
terms by everyone without the need to be accompanied by a concrete example;
verbal descriptions, not authoritative examples, illustrate the rule to be followed.
Private individuals do not need further guidance from authorities on how to apply
the rule; individuals can apply the rules by themselves to themselves. Precedent is
understood as the communication by authoritative example. It is the law understood by
people as regards to one specific and particular instance because it is expressed
through an example.

Legislation seems to be much clearer than precedent in that one could

pinpoint easily recognizable instances and apply them because of its use of general
terms. Communication through verbal descriptions, not precedent, seemingly allows
individuals to avoid uncertainty in guiding behavior. However, problems arise
when faced with concrete situations; the general terms of the description are not
marked in the nature of the facts or the situations. It is not apparent which rules to
apply and when to apply them. This is the inherent limitation of language – the
wideness of the scope of situations and actions that nature and human provide.
There will be cases that are clear, and there will be cases that will not be clear. Canons
of ‘interpretation’ can be used to clarify cases, but these cannot completely eradicate
them because the canons themselves are general rules for the use of language, which
in turn, are composed of general terms. These canons cannot provide interpretations
of the rules by themselves; they need somebody to interpret the general terms, and
thus the canons. Hart argues that legislation, communication through “authoritative
general language in which a rule is expressed may guide only in an uncertain way
much as an authoritative example does”. Legislation is only clear in the obvious
examples, but not in the particular, concrete situations which may arise. Legislation
and precedent are similar in their uncertainty except for the necessity of an
authoritative example. But, regardless of the device used, new situations and cases
can arise where their application is in question, prove indeterminate - an open texture.
 Because of the nature of our languages as open-texture, we are forced, “at the
point of actual application, a fresh choice between open alternatives”. It is not a good
thing to strive for a rule so detailed that a choice will never be made because of
man’s inherent limitations. “We are men, not gods. We labor under two connected
handicaps whenever we seek to regulate conduct by means of general standards to
be used on particular occasions”. The first limitation handicap is man’s relative
ignorance of fact; we can only grasp a finite number of features and situations in the
world. The second limitation is the relative indeterminacy of aim; we cannot, for
certain, determine all the possible combinations of circumstances which may happen
in the future. General rules are used to fit multiple potential situations into one
general rule. If an unforeseen situation arises, a choice, a compromise among
competing interests, will be made that will consequently bring back determinacy to
the general rule.

Given the inherent nature of humanity, legal systems can either acknowledge
or disregard the need for choices in the application of rules. A legal system that tries
to disregard this reality is formalism. “Formalism or conceptualism consists in an
attitude to verbally formulated rules which both seeks 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”. In situations where
it would be best to choose to exclude a case from a rule to achieve our social aim, a
conflict between the rigidity of the classification and the aim of the law is created.
The problem with formalism is its rigidity; it fails to look at the balance of our two
social needs: the need for certain rules which can be applied by individuals to
themselves without further guidance and intervention, and the need to leave open
issues which can be resolved when they arise in a concrete case. Because of the
imbalance, one way the legislature attempts to regulate this problem by “setting up
very general standards and then delegates to an administrative, rule-making body
the task of fashioning rules adapted to their special needs or by leaving to
individuals, subject to correction by a court, the task of weighing up and striking a
reasonable balance between the social claims which arise in various unanticipatable
forms.”

But in the field of precedent, the kind of indeterminacy is more complex

because while legislation is usually concerned applying rules on cases which were
not foreseen, precedents are still widely contested as to their validity and usage
among and within many legal systems. It cannot completely be described, but can be
attempted to be characterized. “First, there is no single method of determining the
rule for which a given authoritative precedent is an authority. Secondly, there is no
authoritative or 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”. In one case, the courts can narrow the rule
from an earlier precedent and declaring it as an exception, given that there was a
difference between the cases. In the other case, in following an earlier precedent, the
courts can discard a restriction of the rule citing no backing in an established statute
or earlier precedent. “The result of the precedent has been to produce, by its use, a
body of rules of which a vast number, of both major and minor importance, are as
determinate as any statutory rule”.

In the end, the open texture of law means that there will always be a need for
choices in the application of rules to particular cases in looking for balance in the
competing interests of society.

II

In every legal system, courts are given a wide discretion in settling these cases.
However, there are a number of theories that take this to the extreme. These are
known as rule-scepticism. One such theory claims that law consist simply of court
decisions and the prediction of them. However, this assertion is incoherent; “the
existence of a court entails the existence of secondary rules conferring jurisdiction on
a changing succession of individuals and so making their decisions authoritative”.

Another theory is the notion that “statutes are not law until applied by courts
but only sources of law”. This is likewise wrong as this denies the application of
rules to private individuals. It must be remembered that individuals exhibit the
internal point of view. Law is not merely a prediction of what the court will decide,
rather, they see it as a guide for how they should conduct themselves. because under
this, a rule must be certain and must be applied generally, not leaving room for
exceptions.

III

The third type rests on the fact that the decision of a court has a unique position
as something authoritative, and final. The most instructive feature of this theory is
its “exploitation of the amibiguity of such statements as ‘the law is what the courts
say it is’.

Hart uses the case of a game wherein the decisions of the scorer are final. In this
case, rule remains the same. The scorer’s task is to decide when a player merits a
point. To say that ‘the score is what the scorer says it is’ would be false if it menat
there was no rule involved and that it’s based solely on the scorer’s discretion; it just
means that he is the determining factor. It cannot be said that the player’s statements
are predictions of the scorer’s rulings. “The player, in making his own statements, is
doing what he did before: namely, assessing the progress of the game, as best he can,
by reference to the scoring rule”. The difference between the player and the scorer is
that the player’s statements are not official; while that of the scorer’s are
authoritative and final.

In relation, the scoring rule has room for open texture where the scorer has to
exercise a choice, yet has a core of settled meaning. This is that which the scorer is
not free to depart from. “It is this that makes it true to say that the scorer’s rulings
are, though final, not infallible. The same is true in law”. Moreover, because this
open texture allows courts to create precedent, decisions of courts stands until
legislation might choose to change it. This law is only operative if there is a rule that
confers this jurisdiction to the courts.