Mgr Bartosz BISKUP

Jagiellonian University

English abstract: This paper outlines how we can use Hart’s conception of the open texture of law for a  theoretical reflection on the phenomenon of evolving legal institutions. The first part of the paper reflects on the concept of ‘open texture’. It presents the so-called prescriptive interpretation of the open texture, initially proposed by Brian Bix. The prescriptive interpretation does not aim to prove the existence of open texture. It indicates that we should interpret legal provisions ‘as if’ there was an open texture. In the second part, I present how the open structure of law explains judicial activism or legislative amendments. As an example, the concept of marriage is of primary concern. One of the main pitfalls is the so-called ‘semantic argument’, which highlights the linguistic boundaries for making certain legal changes (e.g., introducing same-sex marriages and granting legal personhood to rivers). The problem of semantic boundaries is placed in the context of the division between concepts relating to social and legal kinds. Finally, the above considerations are tentatively applied to the discussion about contents of Article 18 of the Polish Constitution.

Keywords: open texture, marriage, legal kinds

Language: Polish

Published: Number 1(34)/2023, pp.18-31

DOI: https://doi.org/10.36280//AFPiFS.2023.1.18

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