Facts in the Law : A Legal Positivistic Conception of the Law/Fact Distinction

Abstract: This thesis concerns the law/fact distinction in law. The interest it takes in the distinction is not practical, but conceptual. It more specifically concerns the questions: “What is it that is conceptually assumed about something when it is categorized as ‘of law’ or ‘of fact’?” and “What is conceptually assumed about the law when law is distinguished from fact by the use of the law/fact distinction, and, in particular, is this assumption compatible with legal positivism?” It approaches the questions both descriptively and normatively.Descriptely, it sets out to structure the existing scholarly discussions on the law/fact distinction into different conceptions, which are exemplified and analyzed. It finds that the existing conceptions of the law/fact distinction connects this distinction to the application of law to non-law; but also that the law/fact distinction cannot be reduced into the distinction between law and non-law. Further, it finds that the vast majority of conceptions of the law/fact distinction entails a conceptual assumption of the law that is not compatible with legal positivism. The thesis further presents a new theory of the law/fact distinction, which accounts for the conceptual assumptions found in the existing conceptions and which is compatible with legal positivism. In order to do so the extended concept of law is introduced. On the extended concept of law, law is defined as Primary and Secondary Rules, Legal Representations of the Non-law (adjudicated facts) and Legal Conclusions. Thus, the theory stands out from earlier conceptions of the law/fact distinction in that it conceptualizes the adjudicated facts as part of the law, rather than as something distinct from law. Adjudiacted facts are conceptualized as legal representations of the legally relevant non-law. An adjudicated fact entails that the court shall proceed as if it corresponds to the actual state of the non-law. Further, an adjudicated fact is claimed to be, directly or indirectly, conditional for a legal conclusion. Hence, it is claimed that it can be subsumed under a legal rule.

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