Mathieu Carpentier (Universite de Toulouse 1 Capitole) has posted Against "Legal Facts" on SSRN. Here is the abstract:
In this paper, I set out to argue that we should stop talking about “legal facts” in general jurisprudence. This goes especially for legal positivists who seem to think that positivism is a theory about the way “legal facts” depend on – are determined by – supervene on – are grounded in – social or moral facts. This is very neat way to frame the issues at hand: it’s all about facts of various sorts: it’s facts all way down. Neat as it is, I will argue that this framing should be resisted.
Legal positivism was never a theory of legal facts simpliciter, but only a very specific and distinctive set of facts about law: namely, the fact that certain norms belong to legal systems, and others don’t. Legal positivism is a thesis about norm membership (what is sometimes called "legal validity"). What makes a given norm exist – or not – qua legal norm is (according to positivists) a matter of social fact. This is the core thesis of legal positivism.
On the other hand, ever since Mark Greenberg introduced the phrase, “legal facts” are usually defined as facts about the “content of the law”, which is very ambiguous and covers issues completely orthogonal to positivism (such as issues about normative content and interpretation). Since the determination of normative content may, in certain circumstances, rest on moral considerations – without there being any threat to the core claim of legal positivism – it is simply not true that legal positivism is the thesis that legal facts are always determined by social facts and never by moral facts.
More insidiously, the imprecision of the “legal facts” framing is a Trojan Horse for holistic theories of normative content which flout the membership/content distinction – and do not rest on the existence of norms atomistically individuated. Since positivism is mainly a theory of the existence of legal norms, talk of “legal facts” distort the debate with antipositivists (such as Dworkin and Greenberg) by making it the default picture that the “content of the law” is not a set of legal norms, but a set of “facts” ("eg the fact that Jones legally ought to pay 35 dollars to Smith”) which can then be grounded holistically in moral facts. This in turns forces positivists to make extreme contortions in order to salvage the thesis that “legal facts are grounded in social facts”, thus abandoning the atomistic picture of the law which is part of the core thesis of legal positivism.
Finally, talk of “legal facts” has been embraced by many positivists out of metaphysical appetite. Facts are great, because, contrary to other entities, eg, norms, whose ontological status has always been disputed, they are perfect for metaphysical treatment. This is especially visible in the growing literature on grounding and the law. If grounding is about the way some facts determine others at different levels of fundamentality, then legal facts are obvious candidates for grounding-based explanations of the law. I suggest that jurisprudes – of all stripes – should resist this new metaphysical turn in jurisprudence, which impoverishes our common frameworks of conceptual analysis and obfuscate many important philosophical questions about law.
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