Chapter

Defeasibility and Open Texture*

Brian H. Bix

in The Logic of Legal Requirements

Published in print September 2012 | ISBN: 9780199661640
Published online January 2013 | e-ISBN: 9780191745461 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199661640.003.0011
Defeasibility and Open Texture*

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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.

Keywords: H. L. A. Hart; philosophical open texture; legal reasoning

Chapter.  5035 words. 

Subjects: Jurisprudence and Philosophy of Law

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