Defeasibility and Open Texture

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

This chapter examines the connections between these three notions: philosophical open texture, Hartian open texture, and defeasibility in legal reasoning. Section A begins by exploring the origins of the idea of 'open texture'. Section B looks at the way the concept works within Hart's analysis, Section C offers a brief overview of defeasibility while Section D compares open texture with defeasibility. The primary conclusion is that Hartian open texture and defeasibility are, at best, only broadly analogous, in that both create circumstances in which judges have discretion to create new law or exceptions to existing law.

Original languageEnglish (US)
Title of host publicationThe Logic of Legal Requirements
Subtitle of host publicationEssays on Defeasibility
PublisherOxford University Press
ISBN (Electronic)9780191745461
ISBN (Print)9780199661640
DOIs
StatePublished - Jan 24 2013

Keywords

  • H. L. A. Hart
  • Legal reasoning
  • Philosophical open texture

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