| Phi 213 Spring 2016 |
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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.
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.