Chapter 7 presents two aspects of Hart’s response to American legal realism, his accounts both of the features of law he takes to motivate the legal realists and of the ways in which he thinks their view is misguided. The focus of our discussion is likely to be on the first two topics listed below for the first section (rules vs. examples and the idea of “open texture”) and the distinction between finality and infallibility made in §3.
• One function of section 1 of ch. 7 is to acknowledge the truth of a criticism of Austin’s “analytic jurisprudence” by American legal realists—viz., that it gave too much significance to rules. But the ideas of open-textured concepts and of penumbras of uncertainty that Hart discusses here are central to his own thinking. The specific topics he addresses in this section can be outlined as follows:
• the comparison of rules and examples as ways of communicating standards (pp. 124-125),
• the problem of “open texture” (pp. 126-130),
• ways of balancing needs for generality and flexibility in different sorts of case—for example, by administrative bodies or by standards of due care—(pp. 130-134), and
• special issues concerning precedent (pp. 134-135).
We will focus on the first couple of these, but notice the reference to the “rule-producing” function of the courts in Hart’s concluding paragraph (p. 135); it will form an important point of disagreement between him and Dworkin.
• Section 2 defines an issue that Hart will go on to discuss in §3. When reading §2, think through each of the forms of “rule-skepticism” Hart describes and ask yourself which seems most plausible. Although Hart will focus on one form to discuss in depth in §3, some of the others are worthy of further consideration. For example, Dworkin will reject Hart’s way of avoiding the “false dilemma” described on p. 139, but he will still hold that the dilemma is false (since, according to him, judges can be bound by standards other than rules). As a result, he could be considered a kind of rule skeptic; but, if so, he is not a rule skeptic who would agree the views of the American legal realists that Hart calls attention to.
• In §3, look for the way in which Hart wishes to distinguish finality and infallibility. In particular, think about his discussion of the significance of statements of the score made by official scorers in ordinary games by contrast with their significance in the game of “scorer’s discretion.” These ideas will probably be the ones we will spend most time on in our discussion.