Kasatkin S.N. Eliminability of “Open Texture” of Law: Three Observations of R. Dworkin
DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.12
Sergey N. Kasatkin, Candidate of Sciences (Jurisprudence), Associate Professor, Professor, Department of the Theory and History of State and Law, Samara Law Institute of the Federal Penitentiary Service of Russia, Rylskaya St., 24V, 443022 Samara, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0001-5541-9181
Introduction: the article addresses one of the aspects of the landmark dispute between the American jurist Ronald Dworkin (1931-2013) and his British colleague Herbert Hart (1907-1992) related to the problems of legal uncertainty and deficiency of law. If Hart declares the linguistically conditioned and irrevocable “openness” of law in borderline cases, R. Dvorkin emphasizes the existence of the only correct answer to any legal question, pointing to the mechanisms of circumventing the language uncertainty and ensuring the completeness of law. These include the canons of statutory interpretation, the duty of the judge to choose the most legitimate interpretation, as well as the rules of interpretation of the law by its undeniable linguistic significance. The purpose of the article is to study the ability of R. Dworkin’s arguments to neutralize H. Hart’s ideas on the basis of the general scientific and specific scientific methods. As a result, the article fixes H. Hart’s point of view on the “open texture” of law and various lines of counter argumentation on the part of R. Dworkin, summarizes and evaluates Dworkin’s objections to the nonremovability of the problems of “open texture” in law. The article substantiates the conclusion about the insufficiency of R. Dworkin’s arguments against the Hart’s doctrine: the considered canons and rules of interpretation can reduce legal uncertainty, but not eliminate it in a fundamental way (generating multiplicity in the grounds of the truth of legal statements). More preferable for R. Dvorkin is the defense of the “thesis of the correct answer” through its connection with the institutional conventions of the legal system and challenging the possibility of its “external” criticism.
Key words: R. Dworkin, H. Hart, legal uncertainty, “open texture” of law, legal insufficiency, judicial discretion, thesis of the correct answer, interpretation of law.
Citation. Kasatkin S.N. Eliminability of “Open Texture” of Law: Three Observations of R. Dworkin. Legal Concept, 2019, vol. 18, no. 1, pp. 93-98. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.12
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