H. L. A. Hart'ta açık metin kavramı
Özet
Discussions about legal indeterminacy have been carried by legal formalism and legal realism in a way which distinctly shaped the limits of discussion. H.L.A. Hart describes this problem as an unavoidable fact and finds a midway between those views. As a result of this a theory has been established; a theory connected with rules, discretion and relation between law and language. Open texture is one of the key concepts of this theory.Even though Hart has been described as a soft legal positivist because of his differences with traditional legal positivism Hart?s theory is an envision of a legal system depending on determined, anticipated, objective rules. Hart disclaims it is not possible to set a rule for every fact situation and standards about conducts might be transferred by general rules. Both the nature of language is vague and the rules conclude terms which have common characteristics conclude penumbral areas in legal system; Hart claims that, in the application of rules these penumbral areas might result hard cases and he connects these situations with the concept of open texture as a result of above mentioned reasons. Judges have an important role in open texture area because judges have significant authority in practice. They must exercise discretion to define appropriate solutions for the indeterminate situation. Open texture theory may be evaluated as a result of Hart?s law system and his understanding about rules. Discussions around this subject in philosophy of law are still continuing related with; explanation of law, discretion and interpretation of law.