Open Texture of Law and Hard Cases

Law is a set of rules which governs and guides human conduct. Law is said to have an “Open texture”. By referring law to have an “Open texture”, it is meant that law is indeterminate and vague. There can be many interpretations of a law depending upon various factors. As Hart puts it, “Whichever device, precedent or legislation, is chosen for the communication of standards of behavior, these, however smoothly they work over the great mass of ordinary cases will, at some point where their application is in question, prove indeterminate; they will have what has been termed as open texture.” The phrase ‘open texture’ is an analogy with the texture of fabric where there is scope for inserting strands in several possible ways.

There are many sources of law such as the Grund norm, customs, etc. One of the most important sources of law is case law. Case law is a set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law. The need of case laws and their influence on law shows evidently that law has an open texture. Since law is vague, the purpose of case law is to render vague standards determinate, whether such standards are contained in legislation or case law itself.

Law is expressed in general terms. For example Article 21 of the Indian Constitution which states ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. This is stated in general terms. The words and phrases ‘life’, ‘personal liberty’, ‘procedure established by law’ have an open texture. These can be interpreted in different ways depending upon the limitations of language, place and time, the societal acceptance, etc. Similarly, the phrases ‘reasonable care’ and ‘reasonable forseeability’, often used in Law of Torts, have an open texture or can be interpreted in different ways depending upon the various factors.

‘Hard cases’ are those situations where there is a great deal of confusion as to what law means or what the general terms that have been used in law mean. Hard cases require authoritative adjudication which must be done by either judges or officials. This is in contrast to the ‘Plain cases’, where more often than not, it is clear what is meant by the law.

Law has to have the open texture because nobody can predict the future exigencies and depending upon the changing times, the perception of law changes. Hence the importance of open texture of law. It is better not to give concreteness to a particular law in absolute terms and it is desirable to leave open such cases for future determination on a case by case basis.

Some examples of open texture would include Article 25 of the Indian Constitution which deals with the freedom of conscience. Here, the meaning of the word ‘conscience’ is unclear and can be dealt with in different ways.

Thus, it can be said that in most of the cases, law is indeterminate and vague. Due to this, law has an open texture and to give it clarity and determinacy, case laws are important.

The  author can be reached at: amol.rml@legalserviceindia.com