Facts in Law and Facts of Law

Abstract

The nature of the distinction between issues of fact and issues of law is considered. Courts in the United States and England have failed to articulate the distinction. Arguments that a distinction may be drawn on ontological, epistemological or analytical grounds are considered and rejected. It is argued that the law/fact distinction involves a complex interaction between three variables: (1) conventional meanings of the terms ‘law’ and ‘fact’; (2) structural relationships within the legal process; and (3) a distinction between matters of general import and specific, localised phenomena. It is concluded that this interaction is too complex to be reduced to simple rules and that the labelling of a particular issue as ‘legal’ or ‘factual’ is essentially a functional decision made on pragmatic grounds.