BRIAN BIX ON THE "OPEN TEXTURE" OF (LEGAL) LANGUAGE

Abstract

The idea of the "open texture" of legal language was first introduced in Herbert Hart’s fundamental work "The Concept of Law", more than fifty years ago. Since then, this topic has not lost its relevance, but has been further developed, primarily in the Anglo-American legal philosophy. It is well known, that Hart borrowed this idea from his Oxford colleague Friedrich Waismann, who used the "open texture" as an argument against the phenomenalist position that material object statements can be reduced to the sense-datum statements. But it is not obvious that Hart and Waismann were talking about the same thing. It is worth noting how the "open texture" changed meaning in the borrowing. Hart applied it to the analysis of the concepts of legal language, while Waismann considered mainly the concepts of empirical language. Are there any similarities between these approaches, and what are the differences? Brian Bix, American legal philosopher, tried to elucidate this in his article "H.L.A. Hart and the "Open Texture" of Language", the Russian translation of which is published in this issue. He sets himself a very ambitious task: not only to present a detailed analysis of Hart’s views on the "open texture" of legal language, and to explore the intellectual roots of this idea, but to offer, in his opinion, a "correct understanding" of what Hart understood as "open texture". But did Bix succeed in this difficult task? There are well-founded doubts, the presentation and analysis of which are presented here. First of all, Bix’s interpretation of Waismann’s theory of "open texture" raises some questions, there are also questions to his presentation of Hart’s views. But despite this, Brian Bix did, indeed, detailed study of the genesis of the idea of "open texture", systematically and consistently described its main qualitative characteristics. Not a single researcher of a theory of "open texture" of legal language, except Bix, paid such close attention to the origins of this idea in the works of Waismann and Wittgenstein. And this is an undoubted advantage of his already canonical work on the study of "open texture" of legal language. The presented comments do not detract from the results obtained by Bix, but rather supplement them with new considerations.