Was ist die Jurisprudenz? – Die Vorlesung „Jurisprudence“ am Trinity College Dublin
Ein Beitrag von Marcel Kahl und Jakob Werbrouck*
Teil 1: Die Veranstaltung Jurisprudence
Der Begriff „Jurisprudence“ ist mehrdeutig. Zunächst einmal kann er Rechtsprechung bedeuten, womit er meist auf einschlägiges Fallrecht (case law) hinweist. Im Kontext, in dem auch die besprochene Vorlesung stattfand, steht er für Rechtstheorie oder Rechtsphilosophie. Klassischerweise gibt es dabei zwei widerstreitende Lager: auf der einen Seite die Vertreter des positiven Rechts, andererseits Naturrechtler.
Die in drei Phasen aufgeteilte Vorlesung behandelte zuerst das Werk „The Concept of Law“ des Rechtspositivisten H.L.A. Hart, anschließend John Finnis’ „Natural Law & Natural Rights“1 und abschließend eine Auswahl von Aufsätzen aus dem Bereich des Feminismus im Recht sowie der kritischen Rechtslehre. Das Pensum der Vorlesungsvorbereitung war dabei immens: insgesamt etwa 1.200 Seiten Pflichtlektüre für drei Vorlesungsstunden á 45 Minuten pro Woche, aufgeteilt auf 12 Wochen. Der Fokus der Vorlesung lag dementsprechend weniger auf der Vermittlung von Wissen, sondern auf der Anregung zur Diskussion über die bereits gesammelten Erkenntnisse. Dies lässt sich anhand der spezifischen Ausgestaltung der Vorlesung veranschaulichen.
Die erste Besonderheit gegenüber der gewöhnlichen deutschen Veranstaltung (die polemisch zusammengefasst besteht aus: ankommen, absitzen, abgehen) waren die sogenannten Panels. Dabei waren jede Woche zwischen fünf und zehn Studenten den Fragen des Professors Oran Doyle und der Diskussion mit diesem über die jeweils zu lesenden Text(abschnitt)e ausgesetzt. Die Teilnahme am Panel war eine Voraussetzung für die Zulassung zur Klausur. Wie vorstellbar ist, gab es einige wenige Stunden mit vielen Fragezeichen und peinlicher Stille sowie viele mit heftigen Debatten, auch zwischen den Studenten. Insgesamt waren die Panels eine glänzende Methode, die Konzeption der Vorlesung weit von deren Wortherkunft abzubringen und so der Idee des gemeinsamen Lernens zuzuführen. Zugegebenermaßen war dies in Anbetracht der Gruppengröße von etwa 100 Teilnehmern aber deutlich einfacher möglich, als es wohl in einem deutschen Vorlesungssaal umsetzbar wäre.
Zweites hervorstehendes Merkmal war die sogenannte Webcourse-Discussion. Diese fand auf dem vom Trinity College genutzten „Blackboard“ statt, das vergleichbar ist mit dem von der Heidelberger Universität eingeführten moodle. 5% der Gesamtnote wurden der Teilnahme an den Online-Diskussionen beigemessen. Insgesamt waren zehn Beiträge egal welchen Inhalts und gleich welcher Länge (solange nicht missbräuchlich) zu verfassen. Dafür waren zu besprechende Thesen von Prof. Doyle vorgegeben; man hatte allerdings auch die Möglichkeit, selbst Diskussionen zu beginnen. Im Ergebnis fiel die Webcourse-Discussion eher gemischt aus. Einerseits gab es Diskussionsthemen mit über fünfzig Beiträgen und entsprechend ständigen Wiederholungen oder fehlenden Bezügen zu dem, was andere geäußert hatten. Auf der anderen Seite unterschieden sich die Beiträge in Qualität und Länge sehr, was zu Beschwerden einiger der engagierteren Studenten führte. Der wohl größte Vorteil allerdings war, dass die Webcourse-Discussion neben der Diskussion in den Vorlesungen wegen der wöchentlich abzuliefernden Beiträge von Beginn des Semesters an zu einer kritischen Auseinandersetzung mit dem Material nötigte, wenn man sie denn einigermaßen ernst nahm.
Das dritte und letzte Kennzeichen waren die bereits erwähnten Essays, die Prof. Doyle in etwa mit den Worten einleitete „I want your heads to hurt“. Aufgabe war es, eine These oder Konzeption von einem der behandelten Autoren zu erklären, anschließend in Beziehung zu einem anderen Autor zu setzen und dieses Verhältnis schließlich kritisch zu beäugen.
Im zweiten und drittel Teil des vorliegenden Beitrags findet sich der Aufsatz von Marcel Kahl, in dem dieser sich mit der von Jack Balkin vertretenen Abhängigkeit des Rechts vom Betrachter und dessen Zweck befasst. Diese setzt er in Beziehung zu der von Hart eingeführten „internal perspective“. Er schließt damit, dass Balkins These von der Subjektivität, wenn sie auch nicht grundsätzlich bestehen könne, beim Vergleich rechtlicher Theorien hilfreich sei und eine Erklärung dafür biete, wieso in der Lehre so viele unterschiedliche Ideen vertreten werden.
Im vierten und fünften Teil bespricht Jakob Werbrouck Harts „open texture of law“. Er wendet sich zwei von David Lyons aufgeworfenen Kritikpunkten zu: erstens, dass die Rechtspraxis nicht mit den von Hart entwickelten Folgerungen übereinstimme; zweitens, dass tatsächlich nicht Recht „open textured“ sei sondern bloß dessen Rechtsregeln. Abschließend verwirft er Lyons’ Kritikpunkte als im ersten Fall praktisch irrelevant und im zweiten Fall philosophisch unbegründet.
Teil 2: Jack Balkin: ‘Understanding Legal Understanding’
“Rational reconstruction is not simply a test for properties of or relations between legal norms. It is a way of looking at law. To say that law is amenable to rational reconstruction is to make a claim about both an object and a subject who constructs the object in a particular way so that she may understand it.“ (p. 18)
This essay pursues to evaluate the foregoing thesis by Jack Balkin. First, I will give an interpretation of Balkin’s proposition (II.). This includes an explanation of the terms Balkin employs and the actual interpretation of what Balkin tries to attract our attention to. Secondly, I will attempt to criticise Balkin’s thesis by employing Hart’s internal perspective and a self application of his theory (III.). Finally, I shall evaluate the critique and will conclude that the ideas behind Balkin’s proposition can persist, as they reveal factors that contribute to the formation of legal theories that are regularly disguised in those theories (IV.).
According to Balkin, law is not a set of principles that is out somewhere awaiting to be discovered. Rather law is a purposive experience. That law is an experience means that there always is a subject to experience the law. This also includes that there is not the subject out somewhere, who is the best subject to experience the law or the subject, whose position any subject should attempt to take up when experiencing the law. That the experience of law is purposive means two things: first, it is impossible to experience law without a certain purpose that shapes this experience; second, there are many different purposes, in which a subject can experience law and of which one purpose is not necessarily better than another.
Although in his essay Balkin also draws conclusions about law itself (p. 38), he specifically deals with the law’s coherence (p. 2). After Balkin, coherence does not adhere to the law like a property adheres to an object. Coherence is the result of an appraisal of law for a certain purpose. Similar to law itself, legal coherence can be described as an experience, an experience of understanding how well legal principles fit together. However, this experience can differ depending on the purpose of understanding law’s coherence.
II. Balkin’s Thesis
One of these purposes used to understand legal coherence is rational reconstruction (p. 17). In order to understand Balkin’s thesis, it is crucial to understand what he means when he talks about rational reconstruction (1.). Not until then is it sensible to explain and interpret the thesis (2.).
1. Rational Reconstruction
a) Rational Reconstruction from an objective point of view
In a nutshell, rational reconstruction is the attempt to make sense of the law, in particular legal materials. The legal materials concerned are statute law and case law. These materials are mostly imperfect as they can be contradictory, confusing, and fragmentary. Therefore, it is the task of the subject who interprets those legal materials to arrange them in a certain order so that they create a coherent entity. This order is formed by the construction of legal principles that are derived from the materials, or rather, put behind those materials. Contradictions are resolved by declaring inconvenient materials, especially judgments, as actually wrong, as anomalies or negligible exceptions to the principle. Confusions, which will most likely result from unclear wording, are unravelled by interpreting what reasons could reside behind the respective judgments or statutes. Fragments and gaps, which result from cases that did not occur in court yet or have not been considered by the legislator, are resolved by extending the established principles or devising new ones. The goal of these arrangements is to make the legal materials comprehensible in a way that they at least appear to be rational. This method of arranging the materials in a comprehensible order, which is employed in order to achieve the goal of comprehensibility, is called reconstruction. This is the understanding of rational reconstruction when the only object is concerned.
b) Balkin’s subjective component of Rational Reconstruction
Balkin adds to this merely objective understanding of rational reconstruction a subjective component (pp. 19 et seqq.). In his view, we employ rational reconstruction for a certain purpose, in particular to deal with the application of legal rules to a case. To apply those legal rules, we need to understand them. As we comprehend ourselves as rational beings (pp. 10 et seq.), we only understand those rules if they seem reasonable to us. After Balkin, rules which are reasonable due to the consistency of the principles behind them are called normatively coherent (p. 10). The purpose of rational reconstruction is exactly to establish the reasonableness of the law concerned. As a consequence, we can apply the law without suffering from beliefs of acting wrongly as we mean to apply rational rules in a rational way. In addition to this purpose, rational reconstruction also entails an attitude of interpretation (pp. 19 et seqq.). This attitude is formed by the very purpose of applying legal rules: as we want to apply those rules correctly and have the impression to apply them correctly only when they seem reasonable to us, we have to find reasonable principles on which they are founded. Therefore, we want to find reason behind those rules. This means that however badly phrased a statute is or however contradictory a set of judgments, we will reconstruct the legal materials as well as possible until we have produced a coherent set of principles underlying them. We would not accept a situation, in which we do not know how to apply the given rules. At that, ‘as well as possible’ means that we do not necessarily have to find every single one of those principles just or morally valuable, we do not have to agree with them. It suffices that they appear consistent to us (pp. 18 et seq.); ‘consistent’ not in a way of mere logical non-contradiction but mutually substantive support of the principles (pp. 19, 10). 
At this end of a basic explanation of Balkin’s conception of rational reconstruction, I want to emphasise that rational reconstruction is only the first step in order to achieve the purpose of applying legal rules to a case. The second step is the application of the rationally reconstructed legal materials. Consequently, what I earlier described as the purpose of rational reconstruction is not necessarily that clear since, when one applies the law, one always has different purposes for why and how the law should be applied. Therefore, also the purposes of the specific application have to be taken into account as they effect the construction of the legal materials as well.
2. Explanation and Interpretation of Balkin’s proposition
a) Rational reconstruction is not simply a test for properties of or relations between legal norms.
We have already seen what rational reconstruction is and that Balkin would not call it ‘simply a test for properties or relations between legal norms’ since in his perspective a view on the object of analysis only is not enough. In this section, I will explain how Balkin comes to that conclusion.
The law is coherent if the principles that justify it are coherent (p. 11). There are two possible means of justification: first, hypothetical justification; second, actual justification (pp. 13 et seq.). According to hypothetical justification, law is coherent if it can be explained by a set of consistent principles that would justify the law under the premise that they themselves were justified. The problem about hypothetical justification is that the required standard of justification is too easy to meet. One could just make up any set of principles that do not contradict each other in order to achieve hypothetical justification.
According to actual justification, law is coherent if it can be explained by a set of consistent principles that themselves are justified. There are two problems about this type of justification: First, it is very unlikely that any legal system will ever fulfil the criteria as no legal system will ever be entirely just. Secondly, whether or not a legal principle is justified is always contestable because a conception of justice depends on the weighing up of principles behind justice again within which a unilateral choice is never possible. Therefore, a question of coherence would shift to a question of justice if actual justification was employed to determine the coherence of law. However, whether a (part of a) legal system is coherent is not the same as whether (a part of) it is just. Coherence merely contributes to justice.
Balkin offers a compromise approach: law is coherent if it can be explained by a set of certain consistent principles that would justify the law under the premise that they themselves were justified. These certain principles are what Balkin calls ‘bona fide principles’ (p. 15). A bona fide principle is a type of moral principle that can be considered to be apt to justify the law. In this lies the problem of this compromise approach of coherence: Whether or not a certain principles is to be regarded as bona fide depends on actual justification again. If a (bona fide) principle is too arbitrary and too unjust, it is inapt to be employed to explain legal coherence. As people have different views about justice and the like, a test of legal coherence will never lead to a definite result. Therefore, Balkin proposes rational reconstruction as a perspective on legal coherence that bares the contributions of the subject to the approach towards law.
b) It is a way of looking at law.
That rational reconstruction is a way of looking at law is clear from the above. A ‘way of looking’ entails two features. The first one is, again, the purpose. It is a certain perspective that contributes to the means of analysis and yielding of particular result. The second feature is the subject. If something is a ‘way of looking’, this means that there has to be somebody to look. This individual also contributes to the result of rational reconstruction; in particular, her moral and political beliefs as well as her legal knowledge (pp. 32 et seqq.).
Although it is not clear whether Balkin thought about this while he phrased this sentence, I want to look at it from a second perspective from which it can be read in the following way. ‘It is a way of looking at law.’ To enhance the understanding of rational reconstruction it might be helpful to shortly demarcate it from the so-called rational deconstruction. Rational deconstruction is a means used to explore the law’s failures (p. 20). It is employed without the charitable attitude we use when we apply rational reconstruction. Contrary to rational reconstruction, in rational deconstruction we examine legal materials in order to find incoherence. However opposed rational reconstruction and rational deconstruction appear to be, they are closely interlinked (pp. 22 et seq.): When we apply rational reconstruction, we need rational deconstruction to find out which legal materials are inconsistent so that we can neglect the incongruous materials as anomalies. When we apply rational deconstruction, we need rational reconstruction in order to imagine a set of principles that could be coherent instead.
c) To say that law is amenable to rational reconstruction is to make a claim about both an object and a subject who constructs the object in a particular way so that she may understand it.
The third sentence of Balkin’s proposition is a summary of what resides in the first two sentences. Rational reconstruction is a means of understanding the law. However, as we form legal coherence through our understanding, it is crucial what features we bring into this formation. In summary, the result of rational reconstruction depends on the following factors: the legal materials concerned, the purpose of the specific act of rational reconstruction, the moral, political and legal background of the interpreter. The first factor will change over time, strictly speaking with every rational reconstruction employed; the second factor will be a different one every time when we define the purpose of rational reconstruction – applicability of certain legal rules to a certain case – narrow enough since every case is different; the latter three factors will change every day the interpreter grapples with one of those three. Therefore, every result of rational reconstruction is unique. However, many results will of course be (almost indistinguishably) similar just as the factors in situations of rational reconstruction can be (almost indistinguishably) similar as well.
Teil 3: Critique of Balkin´s thesis
There are two means by which I will criticise Balkin´s proposition. The first one concerns Balkin´s conclusions about the influence of rational reconstruction on the so-called internal perspective (1.) The second means of criticism is Balkin´s theory itself; we shall see how Balkin´s theory reacts if we conduct a self-application (2.).
1. The internal perspective
The internal perspective was introduced by H.L.A. Hart.6 Described in short, from the internal perspective, a certain rule in a legal system is a reason for behaving in a certain way. Therefore, from the internal perspective, rules are not merely observed but create an obligation. 7
According to Balkin, from the subjective component in understanding the law, it follows there can be more than one internal perspective: people have different (legal) backgrounds – they are laypeople, judges, solicitors, etc. – and they have different purposes for understanding law – they want to get to know what they are allowed to do, adjudicate justly, predict judgments, etc. (p. 24). Therefore, it is wrong to identify the internal perspective with rational reconstruction employed by judges (p. 27). On the contrary, just this one perspective is not the internal perspective that describes the nature of law as is reflected by Balkin stating earlier that rational reconstruction merely is ‘a way of looking at law’ (p. 18; emphasis added).
This contention objects, inter alia8, to Hart’s account of the internal perspective. According to Hart, it is sufficient to take into account the perspective of the officials applying the law in order to ascertain what the internal perspective is; the motivation of the citizens to comply with the rules does not matter as long as they do so. 9
This in turn comes down to the question of what the nature of law actually is. On the one hand there is Hart’s contention: it is sufficient for a legal system that there are, first, citizens obeying the rules that are enacted by officials and, second, that those officials accept the rules as valid reasons for compliance. 10 On the other hand there is Balkin´s notion: what the rules in a legal system are, which scope they have, and what their nature is; all entirely dependent on how they are observed from all sorts of people within a legal system, which includes to what extent and in which way they are complied with (p. 23 et seq.).
In order to ascertain the quality of Balkin´s proposition that everybody contributes to the nature of law, we shall assume that he is completely correct in his contention. Let us try to make a correct statement about law. From my point of view, Balkincan be read in two ways.
First, we could say that since every person in a legal system contributes to the determination of the nature of law, every single statement per se is somewhat true. Consequently, every time we want to find something out about the nature of law we can do that very easily by just asking somebody. There are three problems with this approach. The first one concerns the statements about law. They will necessarily contradict each other. Consequently, a choice has to be made between the certain (types of) statements in order to preserve ones self-conception as a rational being. However, according to Balkin there is no point of view that is to be favoured. 11 Therefore, there is no progress, no result possible. We must not even ask questions about the nature of law unless we regard ‘everything’ as a sufficient answer, which we will not according to the conception of ourselves as rational beings. In contrast, Hart’s approach is much more efficient. As he favours the opinions of the legal officials, every other opinion can be disregarded, which makes an actual answer possible. More importantly, it is the duty of legal officials to decide consistently. Although this might only be possible in general, their opinions do certainly not contradict each other as, say, the opinion of a nursing student and a jurisprudence professor.
The second problem concerns the bulk of materials do deal with. From Hart’s point of view, the number of opinions that have to be taken into account amounts to the materials provided by the officials. Lawyers know from experience that this is regularly a mass of materials almost impossible to deal with. However, if everybody’s opinion had to be taken into account, a statement about the nature of law would certainly be practically impossible.
The third problem is a logical one. If an individual had sufficient time to ask everybody and to deal with all materials available, she would not be allowed to be part of the world of people contributing to the nature of law in order to make a statement about law. If she was, she had to take into account her own notion as well. According to Balkin, this notion however changes every time she gets to know a new notion (pp. 32 et seqq.). The moment she has formed this new notion, she would have to take it into account and, thereby, would form a new notion that she would have to take into account and so on. Apart from that, the notions of the other individuals could change in the meantime and her result would not be accurate as she did not take into account their new opinions. The second way of interpreting Balkin’s contention could read about this: Since there is no perspective to be favoured in dealing with law, there is no right or wrong perspective to take. At first glance, this sounds like a very fair approach and similar to the first interpretation: Nobody or nothing is to be favoured. However, in the first interpretation the various truths were able to compete with one another even though no class of truth was generally favoured. 12 On the contrary, this interpretation does not allow for any statements about the nature of law because it contends that there are no statements about the nature of law possible. This is an unsatisfactory result that is certainly worse than any kind of approximation towards the nature of law. It is pointless to elaborate on it any further.
There is another problem with the altered internal perspective that Balkin introduced. It concerns the purpose of the internal perspective that is to understand law better if we look at it from an internal perspective. Balkin however breaks this purpose of better understanding. On the one hand, he adds so many perspectives to the internal perspective that understanding the law better is hardly possible as I have shown above; on the other hand, he blurs the line between the internal and external perspective by taking the perspectives of those into account that might not necessarily regard a rule as an obligation at all. Consequently, the original idea of the internal perspective becomes meaningless.
In conclusion, we can discern that Hart’s view of attributing the internal perspective to the legal officials is more practical than Balkin’s approach of taking everything into account. Although it might be necessary to look on the subject’s contributions to law as well, it is useless just to let subjectivity dominate propositions about the nature of law as it diminishes the number of sensible statements possible.
2. A self-application of Balkin’s theory
According to Balkin, every statement about law depends on the subject that makes the statement. Therefore, there is no merely objective statement possible. Everything is relative. But Balkin’s claims are absolute ones as they are applicable to legal understanding in general. Every absolute proposition can also be phrased in a way: ‘this is absolute: [proposition].’ Accordingly, Balkin’s proposition reads: ‘this is absolute: everything about law is relative.’ If his proposition also deals with law, his statement is self-contradictory by necessity. In other words, if Balkin’s theory is a statement about law, then everything he says must be relative as well according to his own theory.
As a reminder, the title of his essay reads ‘Understanding Legal Understanding’. Throughout his essay, he deals with the subject’s contributions to every aspect of legal analysis. He introduces a certain way of evaluating law and, therefore, deals also with law itself. Consequently, every statement he makes contradicts the main substantive idea he introduces: Everything depends on the circumstances of the subject. As his circumstances are also the circumstances of a subject, he can, first, raise no claim that what he explains is absolutely true, and, secondly, has to accept every other theory as he is by his own theory confined to his viewpoint which cannot be more than one of many. In conclusion, Balkin is logically limited to claim the validity his theory needs in order to be compelling.
IV. Evaluation and Conclusion
We have dealt with two criticisms of Balkin’s theory. The first is the loss of the utility of the internal perspective in order to determine what the law is. The second criticism is the claim to absoluteness that Balkin’s theory can never express; that is however necessary to vest it with enough firepower to prevail over other theories. Nevertheless, Balkin’s ideas can persist in some respects.
First, we shall have a close look at Hart’s internal perspective again. According to him, it is sufficient if the legal officials take the internal perspective. When a legal official deviates from the internal perspective, it is regarded as a lapse. 13 This presupposes that it is possible to determine exactly what the internal perspective is. Once again, the internal perspective creates an obligation. However, the scope of this obligation has to be determined. This scope in turn depends on the interpretation of the law. As legal officials will often have to deal with borderline cases, it is obvious that the scope of the obligation is not as clear as Hart might suggest in his analysis.14 Judges do not necessarily reach similar conclusions when they decide similar cases. Therefore, it is not clearly recognisable what the obligations are and when somebody deviates from these obligations. This problem is not only interrelated with the issue of the open texture of law, which can be described shortly as phrasing does not equate to meaning, but also with the subjective component in the interpretation of law. By stating that rational reconstruction deals with ‘both an object and a subject who constructs the object in a particular way’ (p. 18), Balkin attracts our attention to the subjective component that Hart disregards. Even though the concept of the internal perspective might water down completely and, therefore, become irrelevant if Balkin´s approach is applied systematically, Balkin offers a point of view that allows us to analyse law (meaning a subject constructing an object) more critically and in more detail because it offers us an explanation of why people come to different conclusions concerning the same matters. Their conclusions do not solely depend on a correct or incorrect appraisal of the object law but also on what they as subjects bring into the analysis.
Secondly, we shall have a look at the logical criticism again. The criticism dealt with the impossibility to contend something with a claim to absoluteness if the claim consists in relativism. Balkin’s assertion logically undermines itself as his statement about law is to be regarded as one of many by necessity. There are, however, two points in which Balkin’s basic idea of subjectivity can persist in its value. The first one concerns its relation to other theories. Theories of natural law for instance claim that law is determined by nature. 15 In order to do that a theorist of natural law has to take up a position from where she claims that law can be appraised from an objective point of view. Therefore, she must not allow for any subjectivity in her theory as this would undermine her premise that law is determined by nature, which means that it is, in turn, determined outside of the human mind contemplating about the nature of law. When we compare Balkin’s theory to a theory of natural law, we see that his theory is reconcilable with a theory of natural law since it allows for other theories to exist. However, the theory of natural law is not reconcilable with his theory as it must deny every other theory as a wrong perspective.
Consequently, his idea of subjectivity allows for a broader perspective.
The second point deals with relativism itself. To make an absolute statement about relativism is impossible if this statement is part of the area that is asserted to be completely relative. This is comparable to the sentence: There is no truth. This statement is logically useless since every proposition we make could also be phrased in the way: ‘the following is true: [proposition].’ The same uselessness holds true for relativism. However, this does not mean that every theory, which includes relativism, is necessarily wrong. It only means that we actually cannot talk about it. Indeed, it could be the case that everything is relative. It is only impossible to ever state it without logic contradiction as we would have to express it by employing absolute terms. The only alternative is not to talk about it, which is unsatisfying and would inhibit progress. Consequently, the value of Balkin’s main idea can still be taken into account in spite of the logic contradiction; we can still understand it.
In summary, Balkin’s idea that we have to consider both the object and the subject when we deal with law faces two problems; the first one being the watered down internal perspective, the second one being the main logic contradiction. As both concerns cannot be eradicated, it is not sensible to use solely Balkin’s theory in order to appraise the law. However, Balkin’s ideas should be taken into account when explaining the law by means of any other theory that claims absoluteness or when comparing different theories about law. These ideas explain why theorists reach different conclusions and are apt to disclose differences of principle that do not reside in a correct or incorrect evaluation of the object but in the moral and political beliefs and the legal experiences of the subjects dealing with the object.
Teil 4: A Critical Analysis of David Lyons’ Perception of the Legal Implications Posed by the Open Texture Theory by H.L.A. Hart
Hart’s theory of the ‘open texture’ of law, first set forth in his meanwhile canonized The Concept of Law, forms both the core of his position regarding judicial interpretation, and his concept of law. 16 He argues that it is impossible for any rule to ever fully anticipate all possible concrete situations it might ever be applied to by a judge. The law, consisting out of rules, must therefore be ‘open textured’: it must offer leeway to judges, much needed to provide an answer to all those situations the legislator, while drafting, could not or did not foresee. In this essay, I will attempt to do three things. First, I will offer a brief yet detailed analysis of Hart’s theory of open texture as it appears in his The Concept of Law. Second, I will take a closer look at an article by David Lyons that provides critique regarding the open texture theory17.18 Seeing the popularity and impact of a work such as The Concept of Law, it would be impossible, given the limited space this essay allows for, to give an overview of or discuss all the criticisms already uttered by other legal philosophers. I will consequently solely focus on David Lyons’ critique on the legal implications of Hart’s open texture theory. Third, I will provide some countercriticism and meaningful thought myself to Lyons’ critique, questioning his assumptions and conclusions.
II. Formalism and rule-scepticism: the open texture of law
Hart’s theory of open texture starts with the proposition that if we are to successfully exert social control on any large group of humans or society, we must do so by use of general rules, standards and principles. This contrasts with particular commands given individually to each citizen: doing this would make the existence of law impossible. According to Hart, there are two different devices utilizable for the communication of those general rules, standards and principles. Firstly, there is the device of communication by example, typified by precedent, and secondly, there is the device of communication by way of explicit general forms of language, typified by legislation. 19
Hart initially seems to prefer the latter type by pointing out that ruling by authoritative example gives lead to indeterminacies while ruling by authoritative general language seems “clear, dependable, and certain”. He illustrates this point by giving the example of two fathers entering church with their sons, the first telling his son that “Every man and boy must take off his hat on entering a church”, while the second one says “Look: this is the right way to behave on such occasions”. Although the second child might very well immediately know that his father is solely talking about taking off hats, he might also be confused by the range of possibilities left open by his father’s directions: should he also only use his left hand to take off his hat, like his father, or should he also put his hat under his seat after taking it off, like his father? The first father on the contrary leaves little doubt about his intentions; his child knows exactly what is expected of him, i.e. to just take off his hat. 20
However, immediately after giving this example, Hart puts this point into perspective by stating that much of the 20th century jurisprudence has consisted out of the “progressive realization of the important fact that the distinction (...) is far less firm than this naïve contrast suggests”. Even when we opt to use communication by general standards, there will be indeterminacies much like when we use authoritative examples to communicate. Hart argues that there is a limit, inherent in the nature of language, to the guidance and clarity ruling by general language can provide. Some concrete cases can clearly resemble the factual situation envisaged by the general expressions and some clearly do not, but others will leave us in doubt whether or not the general terms are applicable. 21
Hart gives the example of a local ordinance prohibiting vehicles in the park. In some contexts, for instance a motor-car, it is clear that the general expression (namely vehicle) applies: this is a ‘core’ case, since it’s located in the ‘core’ of determinate meaning of the general term. In other contexts however, for instance bicycles, airplanes or roller skates, it is not clear that the general expression applies: this is a ‘penumbral’ case, since it’s located in the penumbra of indeterminate meaning surrounding the general term. When an ordinance prescribes that no vehicles are allowed in the park, does this also include bicycles, airplanes or roller skates; or does it on the other hand only include cars? 22
Much like communication by authoritative example, the general expression now only seems to mark out one single case, namely the ‘plain’ or ‘core’ case: motor-cars. 23 And again, much like communication by authoritative example, the legal subject must now consider (as he would with a precedent) whether the present case resembles the plain case enough for the general expression to apply here as well. Hart consequently concludes his point about the unclear distinction between precedent and legislation by saying that however “smoothly they work over the great mass of ordinary cases”, they will “at some point where their application is in question, prove indeterminate”. This is what Hart calls the open texture of law, which forces a “choice between open alternatives”. 24
Although this might initially feel like a deficiency in legislation, Hart immediately provides a justification for the open texture of laws that the intrinsic limitations in the nature of language provokes. It is a feature of “the human predicament” that we legislate under two connected handicaps: our relative ignorance of fact, and our relative indeterminacy of aim. We cannot know in advance all possible objects we might ever qualify as vehicles, nor can we therefore narrow down our aim of providing peace and quiet in the park to solely the prohibiting of those vehicles we can think of now. 25
Indeed, if it weren’t for the open texture of law, the legislator would be forced to create rules so detailed that the question whether or not they applied in any particular case would long be settled in advance, and there would be no need for choosing between open alternatives. This would be unrealistic, Hart argues, “we are men, not gods”. Humans are not able to know all possible combinations of circumstances the future might bring. If we were to try otherwise and settle everything for good in advance (formalism or conceptualism), we would ultimately settle in the dark, since there are “issues which can only reasonably be settled when they arise and are identified”. The necessity for general rules, standards and principles in governing societies that Hart first mentions thus seamlessly blends into the necessity for the open texture of those rules, standards and principles. 26
Evidently, society must be governed “to a very large extent” by determinate rules that do not require a “fresh judgment” from case to case. However, it is a “salient fact of social life” that from time to time, judges must be called upon to give a determinate meaning to a rule that it previously did not have: they must cast light in the penumbra surrounding core cases. The judges must fulfil a “rule-producing function which administrative bodies perform centrally in the elaboration of variable standards”. Doing so, the judges must strike “a balance, in the light of circumstances, between competing interests which vary in weight from case to case”. 27 Further in his book, Hart specifies that the judges may not arbitrarily or mechanically make this choice: they must display “characteristic judicial virtues”. These are, according to Hart “impartiality and neutrality in surveying the alternatives; consideration for the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision”. 28
Teil 5: David Lyons: criticism of the legal implications of the open texture of language
David Lyons considers the legal implications Hart’s open texture theory would have on judges and contests those. He does so by sketching out two alternative ways in which Hart’s open texture theory suggests judges might be expected to deal with penumbral cases, and how they are incongruent with ‘real’ legal practice. He therefore takes back up Hart’s example of the rule banning vehicles in the park. Since the rule neither permits nor bans bicycles, Hart would argue that there is an open texture in the rule and consequently in the law. A judge must therefore be called upon to balance interests; after that, Lyons’ critique breaks down in two hypotheses. 29
1. Lyons’ first hypothesis
In his first hypothesis with regards to the legal implications of the open texture theory, Lyon denies that Hart’s assumptions are in tune with reality and legal practice. When confronted with the above case, the judge could first establish that the rule neither permits nor prohibits bicycles, subsequently amend the law like a surrogate legislator and finally apply the rule retrospectively, as Hart would suggest. In reality, Lyons argues, the judge would not suggest that they’re making new law and applying it retroactively. The judge would, like lawyers and legal academics, act as if they are merely interpreting the law, providing arguments for their reading and reasons against competing interpretations while doing so. Although Hart does acknowledge that judges “often” act as if they are merely interpreting,30 a “clash” between open texture theory and legal practice is nevertheless present according to Lyons. Indeed, if the theory of open texture were really sound, it would imply that judges and other legal professionals are either deluded or deceitful for “doing, what open texture tells us they could not possibly be doing, namely, figuring out what the law already requires and allows”. They are deluded, because they have deceived themselves about their practice, or they are deceitful, because they systematically misrepresent it when urging for amendments and rejecting others. Such an explanation implying extensive confusion or deceit done by legal professionals, Lyons concludes, is not only unfair, but also methodologically unsound. The problem, consequently, is not situated in legal practice, but in Hart’s theory. 31
2. Countercriticism of Lyons’ first hypothesis
In this argument, we could observe that Lyons’ main background idea is the separation of powers. This idea, first clearly defined and popularized by Montesquieu,32 has often been quoted as one of the foundations of the modern (Western) State. The State consists out of three main branches - the executive, legislative and judicial branch- whose powers should be independent and separate. The logical consequence of this definition is a series of prohibitions for the three branches: the legislative branch may not take executive actions nor act as a judge, the executive branch may not legislate the laws it is supposed to execute nor can it impede access to a judge, and finally, the judge may not act as a legislator or as the executive branch. The judge’s power is limited to applying the law, which itself is the ultimate result of a democratic process. If judges were to freely amend the law, there would be no democratic control and the possibility of tyranny would loom. In modern-day States however, a trend towards a balance of powers, as opposed to separation, has been set: the consequence of this theory is not a series of prohibitions but a series of commands directed towards reaching equilibrium through mutual control. Judges can interpret the law differently here when the factual circumstances require so, and consequently not only apply the law but help develop it. 33
Lyons however seems to still hold on to this classic model of separation quite rigorously in his criticism. Indeed, his point goes as follows. First, he seems to imply that Hart’s conception of the judicial branch involves a very broad sense of judicial activism, since, according to him, the judges would ‘make‘ new laws and apply it retrospectively. Secondly, he poses that this is contrary to their task as the judicial branch, since such an activity would constitute a legislative activity and this implies that the judges are surpassing their power of merely applying the law. Thirdly, he notes that in reality judges “do not generally suggest that they are making new law and applying it retrospectively”, but instead, “provide reasons for their reading of existing law and reasons against competing interpretations”. Fourth, he considers that since judges in reality “act as if they interpret the law” and thus not amend it as the open texture theory suggest they really do, there must be a “quite extensive” confusion or deceit amongst legal professionals. Either the judges do not realize that they are actually amending the law when they act as if they are interpreting it, or the judges realize that they are in fact amending the law but obscure this fact through acting as if they are interpreting it. Fifth and finally, such a conclusion would mean “so sweeping a disparagement of the bench and the bar on purely abstract, theoretical grounds, without corroborating factual evidence”, that the only fair and methodologically sound conclusion is that the open texture theory itself is unsound. Judges, consequently, do not amend the law in reality confronted with a penumbral case, as Hart would suggest, but they merely interpret the existing law.
There are several remarks to be made about Lyons’ criticism. Principally though, it is unclear what his conception of ‘interpreting the law’ now really constitutes.
Let us take the example of a person being brought before trial for assisting in euthanasia in a society where this has not yet been legalized, such as for example Ireland. The accused gave the deceased a lethal dose of a certain type of painkiller, causing his death. According to Lyons, the judge would look at the existing laws, and form his own interpretation, eventually reaching a conclusion in the case, providing arguments to substantiate his interpretation. The judge might thus look at the penal provisions and conclude that assisting in euthanasia fulfils the prerequisites for murder; there was a clear intention to ‘kill’ the deceased, and furthermore, he materially assisted in accomplishing that goal. The judge might also look at the same provisions and conclude the contrary: the only reason for existence of both the mental and material element of murder attributed to the accused can be brought back to the deceased. Since there was no actual independent thought or desire to kill, the mental prerequisite is not fulfilled and consequently murder is excluded. At most, the judge could conclude, there is a form of culpable negligence, which does not pose sanctions with the same severity as murder would.
In a case like this one, it would be unclear how Lyons’ conception of interpretation as distinct from Hart’s open texture theory would hold. As Hart would put it, one of the ‘core‘ cases with regards to murder would be somebody shooting another person down because of a personal grudge, but someone who has been ‘instructed’ by the deceased to perform the act would certainly be a ‘penumbral‘ case. Hart would then contend that the judges in the case would have to make a “fresh choice between open alternatives”, and consequently amend the law; the first alternative would be to classify assisting in euthanasia as murder, the second one would be to discard such classification. This clearly goes beyond merely interpreting existing laws and providing arguments for a certain interpretation; the judges in both hypotheses reach morally and ideologically completely opposing conclusions, and inevitably strike a certain political course when making their judgement. How can the nature of the law provide us with such utterly opposing conclusions? Are there perhaps multiple “layers” providing different answers? But even in that case, there would still be a choice that is essentially part of the free will of the judge.
In spite of that, Lyons still argues that the judges do not amend the law but merely interpret it. This does not hold. Lyons fails to see the distinction between the internal and the external aspect of the matter. Internally, judges and other legal professionals know for certain that they are in fact amending and making a fresh choice between open alternatives. When confronted with an issue like euthanasia, no argument is ever completely rock solid, and forming an opinion consequently entails making a choice, motivated by personal considerations. This explains why the very same provision can cause two distinctly opposing conclusions. The judges and legal professionals know this, and realize their choice is intrinsically arbitrary. However, externally, they choose to act as if they are merely interpreting the law. They are neither deluded nor deceitful for doing this; the practice of referencing existing laws and extrapolating completely divergent findings from those laws is simply the mould used to legitimize their thinking. In a democratic State, the reference to democratically enacted laws is the condition a priori that needs to be fulfilled in order to enter discussion, so that those deciding cases are always reminded of the higher cause of the rule of law.
3. Lyons’ second hypothesis
In his second hypothesis on the legal implications of the open texture theory, Lyons criticizes the fact that a judge would, according to Hart, make the aforementioned fresh choice between open alternatives in the first place. Lyons considers that the judge might well establish that the rule neither permits nor prohibits bicycles, but instead of making a choice between allowing and prohibiting bicycles, the judge should throw out the case. Lyons explains this by differentiating between the open texture of rules and the open texture of law, whereby the first may never imply the second, but only the other way around. Indeed, although the specific rule in question may not settle the issue, the legal system or law does. And the legal system, he continues, is asymmetrical with respect to banning and permitting: if no other rule prohibits the use of bicycles, then bicycles are permitted in to the park. In other words, “whatever isn’t prohibited is permitted”. The argument going the other way around by saying that every situation in the penumbra of a restrictive rule is likewise prohibited, is quickly discarded by Lyons by stating that “legal freedom is the default condition”: “systems of law like ours” hold highly the idea that people deserve a fair warning of legal liability before the concerning rule imposing liability is applied. Thus, the fact that the rule banning vehicles in the park is unmistakably open textured does not imply that the law is open textured, and the law or legal system provides that whatever isn’t prohibited is permitted. Consequently, the judges would thus not amend the law like Hart suggests, but throw out the case altogether since there is no cause of action.34
4. Countercriticism of Lyons’ second hypothesis
To formulate countercriticism here, I will dissect Lyons’ reasoning step by step, in a chronological order, and subsequently give expression to my thoughts about it.
First, by differentiating between rules and law, Lyons seems to impose some sort of hierarchical order within our grasp of the legal world: there are, on the one hand, rules or general terms, and on the other, there is law itself. The comparison with Aristotle’s famed adage that the whole is greater than the sum of its parts is not hard to make. This can be deduced from two things. First, Lyons explicitly states that the open texture of rules can never imply the open texture of law but only the other way around, putting law some place above mere rules. Second, according to him, we should view law (interchangeably referred to as ‘legal system’) as the bigger whole every individual rule is but a component of. Should that individual rule show a gap, the law or legal system will automatically fill up that gap through its background ideas (see second point). However, Lyons fails to motivate correctly his grounds for imposing the hierarchy in the first place. Why is it impossible for the open texture of one or many rules to imply that the law itself is open textured? Can the lacunas in many individual rules not show a flaw in the legal system itself? Furthermore, the law as an all embracing whole soaring above the rules and intervening when necessary might be a handy technique to fill up lacunas fast, but it thereby denies the specificity of individual cases and the fact that the legal system can be changed from bottom-up, through those very cases needing a fresh perspective.
Second, Lyons poses that the law is generally asymmetrical with respect to banning and permitting: the law permits whatever it does not prohibit. As mentioned in the first point, Lyons’ (nearly metaphysical) concept of the law automatically enables this background idea to intervene whenever there is a gap in the law. If the rule therefore bans vehicles but does not say anything about the banning of bicycles, we should assume that bicycles are not banned but au contraire, permitted by the law. Any argument going the other way, saying that the indeterminate penumbra of a restrictive rule is automatically prohibited, is rejected by Lyons, who simply states that “legal freedom is the default condition”. There is much room for puzzlement because of the latter wordings; more than a well-constructed philosophical statement, it appears to rather be an ideological or political slogan. One can also easily wonder if saying that an individual has “legal freedom” to do something because there is no rule explicitly prohibiting that action, would not in reality cause the actual loss of freedom? If everybody operated a vehicle within the park, would the chances of everybody impeding everybody not just rise spectacularly? The law grants freedom just because it limits freedom, just because it dares to clearly define the individual’s space and give room for the accomplishing of aspirations within that space, one could easily argument the other way around. Furthermore, Lyons seems to instinctively draw a dichotomy between prohibition and permission; however, it is not because something is not prohibited, that it is therefore automatically permitted. Arguing otherwise shows of a very black-and-white image on restrictive laws. Permission is a stance taken by the State to protect certain conduct at the expense of other conduct; simply not having decided a matter is not the same as wanting to provide protection for it. Lyons seems to presuppose a value judgment that has per definition not been made yet, just because it is a penumbral case that needs to be filled in by a judge.
Third and finally, Lyons finishes his criticism and circular argument by referring back to the rule banning vehicles and contends that whenever a judge is confronted with a penumbral case like bicycles, the judge must hold that such conduct does not violate the law and that there is no cause of action. For, as mentioned above and highly questionable, whatever is not prohibited is permitted. The case should consequently be thrown out of court. Lyons concludes that Hart’s open texture theory is flawed, since Hart contends that the judge would first declare that the rule neither prohibits nor permits bicycles, and thereafter amend the law making a fresh choice between open alternatives.
In this paper, I have tried to make a truthful representation of Hart’s theory of open texture, and reproduce and give critical thought to David Lyons’ thoughts regarding the legal implications of the theory. Although Lyons seems to make a superficially sound criticism, several flaws in his thinking are to be noted. In his first hypothesis, Lyons fails to prove why Hart’s view on interpretation by judges is not in tune with reality; he seems to obscure the fact that in some cases, the line between his view on interpretation and Hart’s amending of the law can be thin if not non-existent. In his second hypothesis, Lyons makes several assumptions that he considers evident yet fails to provide solid philosophical reason for others to accept them. The apparent yet unwarranted need for hierarchy between rules and the law, the neglect of the specificity of the individual case, the sloganesque usage of the term “legal freedom” and the oversimplified dichotomy between permission and prohibition; there are many reasons for puzzlement. In conclusion, although Lyons did manage to take an original angle and provide original thought, his critique is neither strong nor convincing enough to invalidate Hart’s theory of open texture.
*Marcel Kahl studiert seit dem Wintersemester 2011/12 Rechtswissenschaft an der Ruprecht-Karls-Universität Heidelberg. Jakob Werbrouck absolviert seit dem Wintersemester 2013/14 einen Master of Laws in Public Law und Social Security an der Katholieke Universiteit Leuven in Belgien. Die Verfasser verbringen zur Zeit zwei Auslandssemester am Trinity College Dublin.
1Finnis, Natural Law & Natural Rights, Oxford University Press, 2nd edition 2011.
Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, originally published at 103 Yale L.J. 105 (1993). All following references without any further indication refer to a free online version of the article available at http://www.yale.edu/lawweb/jbalkin/articles/understandinglegalunderstanding.pdf.
MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 Oxford J. Legal Stud. 539 1990, p. 556.
An example of mere non-contradiction is: The conclusion of a contract follows the duty of care and the perpetrator of damage has to pay compensation. An example of mutually substantive support is: The perpetrator of battery is usually punished with about 5 years imprisonment and the perpetrator of aggravated battery is usually punished with more than 5 years imprisonment.
An example could be the choice between freedom and equality. Certainly, one never prevails over the other in every respect.
 Hart, note 1, pp. 89 et seqq.
 Note 7, pp. 89 et seq.
 It also contradicts e.g. Raz, The Relevance of Coherence, 72 B. U. L. Rev. 273.
 Hart, note 1, p. 117.
 I read this from his statement on p. 27 where he contends that ‘However, because there are many different purposes in understanding law, and many different social roles in which legal understanding occurs, we cannot pick out one form of understanding practiced by particular legal elites and bestow upon it the title of “the internal perspective’.
 An example of competing truths could be: 1. Mary stabbed John to death in the park. 2. Mary stabbed John to death in the park as he tried to rape her. Although both statements are true at the same time since they do not contradict each other, we would regard the latter as the better truth as it permits us more insight into the circumstances. However, more information does not necessarily create better truths as we can see from a comparison from 1. and 3. Mary stabbed John to death in the park while the sun was shining on her back.
 Hart, note 1, p. 117.
 However, Hart does not simply ignore this problem. He deals with it in his open texture of law, note 1, pp. 124 et seqq.
Cf. as an example Finnis, note 2, who claims that it is the aim of law to secure certain human goods, p. 3.
 Hart, B. Brix, H.L.A. Hart and the “Open Texture” of Language, Law and Philosophy, Vol. 10, No. 1 (Feb. 1991), 51.
 See Lyons, Open Texture and the Possibility of Legal Interpretation, Law and Philosophy 18 (1999), pp. 297-309.
 Note that this is only one part of Lyons’ article; the limited space allowed for by this paper does unfortunately not permit me to discuss the full length of the article. I am thus solely focusing on “A. Open Texture”, and not “B. Overkill”, which deals with other, broader implications.
 Hart, note 1, p. 124.
 Ibid., p. 125.
 Ibid., p. 126.
 Ibid., p. 127.
 Ibid., p. 128.
 Ibid., p. 129.
 Ibid., p. 135.
 Ibid., p. 205.
 Lyons, note 18, p. 298.
 Hart, note 1, pp. 135 et seq.
 Lyons, note 18, pp. 301 et seq.
 See Montesquieu’s De l’esprit des lois.
 Witteveen, De Geordende Wereld Van Het Recht: Een Inleiding, Amsterdam University Press, 2003, pp. 266-271.
 Lyons, note 18, pp. 299 et seq.