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.