VII.

Formalism and Rule-Scepticism1

The Open Texture of Law
General rules, standards, and principles must be the main instrument of
social control in any large group instead of particular directions given to each
individual. Hart begun the Chapter with a statement that law must predominantly,
though not exclusively refer to classes of persons, and not to classes of acts,
things, and circumstances. 2
The following devices have been used for the communication of general
standards of conduct:
1. Legislation3, also known as communication by authoritative general
language applies maximal use of general classifying words. An
example, one father before going to church says to his son, Every
man and boy must take off his hat on entering a church.
2. Precedent4, also known as communication by authoritative example
applies minimal use of general classifying words. An example, one
father before going to church says to his son, Look: this is the right
way to behave on such occasions.
Precedent as a tool for communicating general rule of standards of conduct
may leave further doubts on how to act though the instructions were clearly
given. On the example given above, the son may ask if it should be the right or
left hand should be used in removing the hat. On the other hand, the legislation
as a tool of providing general rules of conduct seems to be more clear,
dependable, and certain because the child have verbal descriptions which he can
use as reference for his future actions.
1 In this chapter, the author criticizes both formalism and rule-scepticism as methods of
evaluating the importance of rules as structural elements of a legal system. Formalism may rely
on a rigid adherence to general rules of conduct in order to decide which action should be
performed in a particular situation. On the other hand, rule-scepticism may not rely on any
general rule of conduct in order to decide which action should be performed in a particular
situation. Formalism may produce such inflexibility in the rules of a legal system that the rules are
not adaptable to particular cases. Rule-scepticism may produce such uncertainty in the
application of the rules of a legal system that every case has to be adjudicated.

2 Hart, Concept of Law (1979), pp. 122

3 Legislation is law that has been produced by a governing body in order to regulate, authorize,
sanction, grant, declare, or restrict.

4 A court decision that is cited as an example or analogy to resolve similar questions of law in
later cases.

The author says that whichever of these two devices is chosen for the
communication of standards of behavior, will prove indeterminate since they will
have an open texture which means that there are areas of conduct that must be
left to be developed by officials who would provide a balance between competing
interests which would vary from case to case. According to heard the reasons for
this are some handicaps of human nature which includes the relative ignorance
of fact and the relative indeterminacy of aim which results from humans inability
to anticipate things.5 To secure a measure of certainty or predictability may cost
blindly prejudging future cases which will result to settling cases in advance
which can only reasonably be settled when they arise and are identified.
Hart presented the idea that different legal systems or the same system at
different times may make use of the choices in the application of general rules to
particular cases. he then provided a definition of formalism of conceptualism, as
that which consists in an attitude to verbally formulated rules which both seeks to
disguise and to minimize the need for such choice once the general rule has
been laid down. One way of doing such would be to establish a single
interpretation of a rule and apply such interpretation in every case which calls for
an interpretation of the rule.
Hart further points out that all systems compromise between two social
needs: first is the need for certain rules which can be applied by private
individuals to themselves without official guidance or weighing up of social
issues. The second one being the need to leave open for later settlement by an
informed, official choice, issues which can only be properly appreciated and
settled when they arise in a concrete case. These two needs are harmonized by
the legislature by its rule-making power.
Varieties of Rule-Scepticism
According to Hart, the term rule-scepticism pertains to three varieties of
skeptics:
1. First, those who subscribe to the claim that talk of rules is a myth,
cloaking the truth that law consists simply of the decisions of courts and
the prediction of them can make a powerful appeal to a lawyers candor.
Stated in an unqualified general form, so as to embrace both secondary
and primary rules, it is indeed quite incoherent for the assertion that
there are decisions of courts that cannot consistently be combined with
the denial that there are any rules at all;

5 Human legislators can have no knowledge of all the possible combinations of circumstances
which the future may bring.

2. Second, those who concede that if there are to be courts, there must be
legal rules which constitute them and these rules cannot be simply
predictions of the decisions of courts; and
3. Last, those who neither relies on the open texture of the law, nor on the
intuitive character of many decisions but rather, on the fact that the
decision of a court has a unique position as something authoritative,
and in the case of supreme tribunals, final.
Finality and Infallibility in Judicial Decision
A supreme tribunal has the last word in saying what the law is and, when it
has said it, the statement that the court was wrong has no consequences within
the system and no ones rights or duties are thereby affected. According to Hart,
the interesting feature of this form of the theory is its exploitation of the ambiguity
of such statements as the law is what the courts say it is and the account which
the theory must give of the relation of non-official statements of law to the official
statements of a court.
In conclusion, the author takes the view that it is a necessary condition of
a legal system existing, that not every rule is open to doubt on all points. Legal
theory is apt either to ignore or to exaggerate the indeterminacies of legal rules.
Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory;
they are great exaggerations, salutary where they correct each other, and the
truth lies between them.