Law, Fact and Legal Language

Author(s): Lech Morawski

Source: Law and Philosophy, Vol. 18, No. 5, Laws, Facts, and Values (Sep., 1999), pp. 461-473
Published by: Springer
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LECH MORAWSKI
LAW,
FACT AND LEGAL LANGUAGE
(Accepted February
28, 1999)
ABSTRACT. This
paper
discusses the difference between the factual and the
legal,
both as to terms and as to
statements,
on the
analogy
of the
methodologists'
distinction of the observational and the theoretical. No absolute distinction
exists,
and
pure
'brute facts' do not exist in law because of the socialisation of
phys-
ical world and
juridification
of the social
world.; also,
the effect of
evidentiary
constraints. Law/fact distinction
depends
on
'applicability
rules'. The
problem
of 'mixed terms' is
partly
a matter of
judicial pragmatics, partly
to do with the
character of
applicability
rules,
and their extensiveness. Semantic realism versus
semantic instrumentalism in
respect
of
legal
terms - the latter
preferred. Tendency
to abstract terms in advanced
legal
orders.
KEY WORDS:
fact, law, term, statement,
brute
fact,
institutional
fact,
applica-
bility
rule,
semantic
realism,
semantic instrumentalism
I
Many years ago, philosophers
and
methodologists
carried on
very
lively
debates on the distinction between observational and theoret-
ical terms. I think that the course of these debates and also their
results resemble in
many respects juridical
discussions about the
law-fact distinction.
Moreover,
in
my opinion,
we
may
learn a lot
from
philosophers
and
methodologists concerning
the
problem
of
law and fact in
jurisprudence.
Before I come to the main
subject
of
my paper
I should make some
preliminary
remarks. The law
-
fact
distinction has two basic
meanings
in
jurisprudence:
1.
legal
term
-
factual term.
2.
legal
norm
-
factual statement
These
meanings, though separate,
are
strictly
interrelated with each
other.
Firstly,
the distinction of
legal
and factual terms is related
to
legal
norms.
Secondly,
we
may
call all statements which consist
!
Law and Philosophy 18: 461-473, 1999.
? 1999 Kluwer Academic Publishers. Printed in the Netherlands.
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LECH MORAWSKI
of factual terms
only
'factual statements'
(I mean,
of
course,
extra-
logical terms),
and statements which contain at least one
legal
term
'legal
statements'.
In this
paper,
I want to take
up
the second
problem,
that is the
problem
of how to
distinguish legal
and factual terms
and,
respec-
tively,
factual and
legal
statements. At first
sight,
it is
quite easy
to
give
some
examples
of factual statements like 'she is a
woman',
'this is a car', 'the river is
contaminated',
and of
legal
statements,
e.g.
'he is an
owner',
'she concluded a
contract',
'he is
guilty
of
manslaughter'.
However,
if we look a little more
closely
at our
instances,
we see that the
problem
is far more
complicated
than it
seemed to be at first
glance.
We
may
ask,
for
example,
is she
really
a
woman
according
to some
sport regulation?
Does the vehicle indeed
fulfil all
requirements imposed by
road traffic
regulations
on cars?
Or is the river contaminated in the sense of some environmental
regulation
or is it
only muddy?
The law-fact distinction has troubled
jurists
for
years
and
they
have still not found
any
reasonable solution to it. I will
attempt
to
explain
later
why jurisprudence
has not succeeded in this
respect.
At the
beginning
of the
paper
I said we
might
learn a lot from
philosophers considering
the
problem
of observational and theoret-
ical terms.1 Let us remember the main conclusions of their
debates,
especially
those which were
expressed
in the
writings
of K.
Popper
and P.
Feyerabend.
I
encapsulate
them into the
following
theses:
- it is
impossible
to make even the most
simple
observation and
not to
rely
on theoretical
knowledge,
- all observation involves
interpretation
in the
light
of theoretical
knowledge,
therefore: the distinction between observational
and theoretical terms has lost its
point.2
1
According
to
typical
definitions observational terms refer to observable
prop-
erties and
objects
and theoretical terms to unobservable ones -
see for instance
R.
Carap:
The
Methodological
Character of Theoretical
Concepts,
Minnesota
Studies in the
Philosophy
of
Science,
Vol.
I,
ed.
by
H.
Feigel
and M.
Scriven,
Un.
of Minnesota Press
Minneapolis
1959;
C.
Hempel:
The Theoretician's
Dilemma,
Minnesota Studies in the
Philosophy
of
Science,
vol.
II,
Un. of Minnesota Press
1963,
p.
42,
47.
2
K.
Popper: Objective Knowledge,
Oxford
1973,
p.
258,
346 and
Conjectures
and Refutations: The Growth of Scientific
Knowledge,
New York
1968,
p.
23;
P.
Feyerabend: Against
Method,
London
1978,
p.
168.
462
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LAW,
FACT AND LEGAL LANGUAGE
In
my opinion,
both the
premises
of that
reasoning
and its conclu-
sion
apply directly
to our
problem. Accordingly,
we
may
assume
that
-
every
factual
finding
in
legal proceedings
is based on
legal
rules,
- there is
nothing
like
purely
brute facts3 in
legal proceedings
since all factual
findings
made in
legal proceeding
are
legally
laden or
conditioned, therefore,
it is
impossible
to
distinguish
factual and
legal
terms.
At first
sight
the conclusion mentioned above
may
seem
devastating
because the distinction of law and fact has not
only
a theoretical
dimension but is also of
great practical importance
for
lawyers.
For
instance,
lawyers
refer to that distinction as
determining
the
subject
and burden of
proof
(iura
novit
curia,
da
mihifactum
dabo tibi
ius).
Similarly,
the
separation
of
questions
of law and
questions
of fact
has a
great
value in
appellate proceeding,
in
particular
if the
appel-
late court is allowed to control
merely legal questions
(errores iuris),
and not factual
questions (errores facti).
It is
important
also in
jury
trials because
questions
of fact are decided
by
the
jury
and
questions
of law
by
the
judge.
In
precedential systems,
the court's decision
on the
question
of law
may
have
precedential
value,
whereas the
decisions on
question
of fact have no such value. If we take all
these circumstances into
account,
our conclusion
may appear really
very
troublesome for
lawyers.
In
spite
of all
this,
I think that we
can save the law-fact distinction
by making
some additional reser-
vations.
Thus,
we
may suppose
that our distinction does not refer to
the whole of
legal knowledge,
that is to all
legal
rules and
principles,
but
only
to a certain
type
of them. I call them
applicability
rules and
I will
explain
their sense later.
Now,
we
may
summarise the
previous
considerations in the two basic
points:
-
assuming
that the distinction of law and fact refers to the whole
of
legal knowledge,
it is
impossible
to
separate legal
and factual
questions
since all statements made in
any legal proceeding
are
in some
way
or another
legally
laden.
3
G.E.M. Anscombe: On Brute
Facts,
Analysis
1958/18.
463
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LECH MORAWSKI
-
assuming,
however,
that our distinction has a more technical
character and it is related to a
special
kind of
legal
rules
(applicability
rules)
we
may preserve
it.
II
Let us consider the first
question.
The thesis that in
legal proceedings
there are no
purely
brute facts
and,
in
consequence
of
that,
no
purely
factual statements and terms follows from
very
different reasons. On
the one
hand,
it is
strictly
connected with the
processes
of socializa-
tion of the
physical
word,
on the other hand it follows from the
juridification
of the social world. The first
tendency
results from the
expanding
subordination of natural and
physical processes
to human
activity.
As a result of the
development
of modem
technologies
and
industries
many, processes
and traits that used to be
naturally given
have become matters for human
decision-making.4
Thus, events,
objects
and
properties
that were
purely
natural some
years ago
are
becoming
social ones.
Now,
it is
really
hard to
say
that there exist
facts that are in no
way dependent
on human will or human decision.
One could
simply say society
and its institutions
regulate
not
only
social relations but relations between human
beings
and nature as
well. This fact was
rightly conceptualised by
U. Beck when he said:
Society
can no
longer
be understood as autonomous of nature. At the
end of the twentieth
century
nature is
society
and
society
is nature.5
Furthermore,
since
society operates
and
regulates
social
processes
mainly by
means of
legal
norms,
social facts are
simultaneously
becoming legal
facts.
Thus,
we
may
come to the conclusion that
the
development
of industrial and
postindustrial
societies has mate-
rialised the old Roman formula ubi
societas,
ibi ius. If we ask the
question:
what does the law not
regulate,
we
might
answer
that,
if
such a
sphere
exists at
all,
it
really
involves a
very
narrow,
and with
every day
narrower,
range
of facts.
The second reason
why
natural and social facts are transformed
into
legal
ones refers to the
ways
in which
legal
institutions
operate.
Even if we find some
apparently
brute facts in our socialised
4
A. Giddens:
Risk, Trust,
Reflexivity, (in:)
U.
Beck,
A.
Giddens,
S. Lash:
Reflexive
Modernization, Oxford,
Cambridge
1994,
p.
189.
5
U. Beck:
Risk-Society.
Towards a New
Modernity,
London
1992,
p.
81.
464
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LAW, FACT AND LEGAL LANGUAGE
world and if these facts
enter,
so to
speak,
the
legal
world,
they
are
immediately
and
unavoidably subject
to
divergent legal opera-
tions which
change
their character and transform their nature. For
instance,
all statements and terms in
legal proceeding
are inter-
preted conformably
to official standards of
legal interpretation.
It
is
commonplace
to
say
that the rules of
legal interpretation
often
differ from those
applied
in natural and social
sciences,
and
they
are
frequently
not declarative but constructive vis a vis the outer world.6
Hence,
even if
lawyers interpret seemingly pure
factual terms
having
a
well-grounded empirical meaning
in other branches of human
knowledge, they usually
transform or
modify
their
meaning
due to
some
legal requirements.
A similar conclusion
may
be drawn if we consider
evidentiary
features of
legal proceedings.
When we
compare
scientific and
legal
proceedings,
we
immediately
detect a lot of differences. The main
part
of the law of evidence in the
Anglo-Saxon
world is made of
exclusionary
rules,
and Beweisverbote
(prohibitions
on
adducing
certain sorts of
evidence)
play
a similar role in the
contemporary
Continental law of
evidence,
in which
they
have a
steadily growing
significance.7 According
to these
rules,
evidence
may
be excluded
not
only
because it is
irrelevant,
misleading
or
simply
unreliable,
but also because it is unfair or
prejudicial.
In recent
decades,
we
have faced a radical reinforcement of this
tendency.
The American
constitutional clauses
prescribing
due
process of
law and
fair
trial
have become a
part
of international law and domestic law in most
democratic countries. The clauses of due
process of
law and
fair
trial are defined as
prohibiting any
action in
legal proceedings
which
is
contrary
to fundamental
principles
of fairness and
honesty. By
virtue of these
clauses,
evidence obtained
unfairly, e.g. by
fraud,
deceit,
against privacy
or human
dignity,
is
usually
inadmissible and
excluded,
even if it is reliable and true.8 On the other
hand,
in
judi-
cial
proceedings
we are in some circumstances
compelled
to
accept
6
T. Gizberet-Studnicki: The
Language
of law and
Weltbild, (in:)
Prawo w
zmieniajlcym
sie
spoleczefistwie,
ed. G.
Sk4pska,
Krak6w 1992
(in
Polish).
7
For
instance,
R.
Cross,
N. Wilkins: An Outline of the Law of
Evidence,
London
1964, p.
12.
8
See Due
Process,
ed.
by
J. Pennock and J.
Chapman,
New York
1977;
R.
Cross,
N. Wilkins: An Outline of the Law of
Evidence,
London
1964,
p.
161;
G. Williams: The Proof of
Guilt,
London
1963, p. 195;
A. Kaissis: Die Verwert-
465
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LECH MORAWSKI
false statements if
they
follow
e.g.
from irrebuttable
presumptions.9
Thus,
the
contemporary
law of evidence
permits
us both to exclude
true statements and
accept
false statements if this is
required by
the
acknowledged concept
of
procedural
fairness. In
consequence
of
that,
the
methodological
rule that in science all that is true must
be
accepted
and all that is false must be
rejected
has a
huge
number
of
exceptions
and limitations in
legal proceeding.
That is the second
reason
why legal
facts and
juristic
Weltbilder
(world-pictures) may
differ and
depart
from facts and Weltbilder in other branches of
human
knowledge.
If we take into account other additional features
of
evidentiary
rules,
e.g.
their formalism and
artificiality
from the
viewpoint
of scientific
standards,
we have to conclude that the
way
in which
lawyers
search for facts and establish them corroborates
also our thesis that in
practical
terms the
category
of brute facts in
legal proceedings
is
very
narrow,
if not
empty.
III
As I said
above,
despite
the conclusion that all terms and statements
made in
legal proceeding
are
always
to a certain
degree legally
laden,
we can save the law-fact distinction
provided
that we relate
it,
not to the whole of
legal knowledge,
but
only
to the
special
kind
of
legal
rules which I call
'applicability
rules'.
Applicability
rules
are rules that
lay
down criteria of
application
of terms embodied
in
legal
texts. The term
'applicability
rules' is wider than strict
(normal)
or even
partial
definition because it
encompasses
also so-
called contextual definitions. We know the
meaning
of
legal
terms
is
usually explicated merely contextually
in
legal
texts. In standard
and most
simplified
form,
the
logical
structure of an
applicability
rule is
represented by
the
following
formula:
(x) [F(x)
...
Fn(x)
=
L(x)]
In our formula F1 ...
Fn
stand for factual
predicates,
whereas L
represents
a
legal predicate.
One can read it as follows: for
every
x,
if x has
properties
F1 ...
Fn,
then x has the
property
L.
barkeit
materiell-rechtswidrig erlangter
Beweismittel im
Zivilprozess,
Frankfurt
am Main
1978,
p.
81.
9
L. Morawski:
Presumptions
and
Legal
Proof,
Torun 1981
(in Polish).
466
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LAW,
FACT AND LEGAL LANGUAGE
Now,
we
may distinguish
two classes of terms that occur in
legal
texts:
purely legal
terms for which all criteria of
application
are
established
by
the
legal
text,
and
purely
factual terms for which the
legal
text does not
provide any
criteria of
applicability.
One could
express
the same idea
by saying
that the
meaning
of
legal
terms
is determined
by
the
legal
text,
whereas the
meaning
of factual
terms is determined
by extra-legal
rules. Let us take as
examples
of
legal
terms such terms as:
contract, testament,
property, trespass
or
marriage
and as
examples
of factual terms such terms as:
trees,
animals,
plants, buildings,
etc. We should
keep
in mind that each
definition of
legal
and factual terms has to be related to a concrete
legal system
or
legal
text.
Accordingly,
the classes of
legal
and
factual terms
may
differ in different
legal systems
or texts.
I
conceptualise
the second difference between
purely legal
and
factual terms
referring
to the notion of institutive rules.10 The
institutive rules
specify
the
relationship
between 'brute facts' and
institutional facts
(I
have
placed
the
expression
'brute facts' in
quotation
marks because in
my opinion
there are no brute facts in
the strict
sense,
there are
only
terms whose
meaning
is not
directly
determined
by legal texts). Now,
we
may say
that the relations
between 'brute facts' are causal or
empirical
unless the
legislator
itself connects them
stipulatively, say by
virtue of a
presumption
of
fact,
whereas the connections between 'brute facts' and institutional
facts can
only
be
stipulative.11
That
is,
they
follow from the fact that
social institutions
(in
our case
legal institutions)
provide
rules which
stipulate
that the occurrence of some facts
brings
about some
legal
effects or
consequences.12
F1
-
causal -*
F2
F1
-
stipulative
--
L1
Of
course,
the difference between causal and
stipulative
relations
consists in the fact that we can
change
or invalidate our
stipulations
10
N. MacCormick: Law as an Institutional Fact
(in:)
N.
MacCormick, O.
Wein-
berger:
An Institutional
Theory
of Law. New
Approaches
to
Legal
Positivism,
Dordrecht
1986,
p.
52.
1
See, however,
my
considerations about mixed terms which can be classified
both as
legal
terms and factual terms.
12
N.
MacCormick, O.
Weinberger:
An Institutional
Theory
of Law. New
Approaches
to
Legal
Positivism,
Dordrecht
1986,
p.
10.
467
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LECH MORAWSKI
so that from the occurrence of F1 will not follow the
legal
effect
L1,
but we cannot
change
or invalidate the causal relation between
F1 and
F2
simply
because it does not
depend
on our decisions
or conventions. MacCormick
rightly
demonstrates the difference
saying
that in the case of institutional
facts,
what is stated is not
true because of the condition of the material world and the causal
relationships among
its
parts.
On the
contrary,
it is true
by
virtue
of an
interpretation
/... / in the
light
of human
practices
and norma-
tive rules.13 From the
stipulative
character of
legal
terms it
follows,
as I said
above,
the classes of
legal
terms
may
differ in different
legal systems
if these
systems accept
different institutive rules. In
any
case,
the
separation
of
legal
and factual terms is related to a
concrete
legal system
or even
legal
text
(e.g.
the term
'guilt'
is
defined
differently
in the Polish civil code than in the Polish criminal
code).
After these
considerations,
I can
present
the core of our
problem.
Apart
from terms for which all criteria of
applicability
are laid down
in
legal
texts and terms for which all criteria of
applicability
are laid
down in other branches of human
knowledge,
we have terms for
which the criteria of
applicability
are determined
by
both
legal
texts
and
extra-legal
rules. I
propose
to call terms of this last sort 'mixed
terms'.14 Such a character is
found,
for
instance,
in the term 'father
of a child'. We
may
establish who the father is
by relying
on a
legal
presumption
but,
of
course,
this term has a
very
well-determined
empirical meaning
in
biology
or medicine.
Consequently,
in Polish
jurisprudence,
some
lawyers
differentiate between
legal paternity
and
biological paternity.
The
problem
of mixed terms
concerns,
however,
not
only
terms
having
well-established
empirical meaning
but also so-called
'ordinary
words' whose
meaning
is determined
by very vague
rules of the common
language.
Jackson
gives
as an
example
the word
'dishonesty',
which in the
English
law of theft is
partially
defined in the Theft Act 1960
but,
for the most
part,
it is a
matter
entirely
for the
jury
to
apply
it
using
the current standards
of
ordinary people.15
The same refers to the word
'reasonable',
13
p.
cit.
14 L. Morawski: Law-Fact Distinction and its
Applications,
RPEiS
1980/1,
p.
190
(in Polish).
15
J. Jackson:
Questions
of Fact and
Questions
of
Law,
p.
93.
468
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LAW,
FACT AND LEGAL LANGUAGE
whose
meaning
is
partly
determined
by
social and moral standards
and
partly by
the
highly
artificial standards of the law of
negli-
gence.16
In the Polish criminal
code,
we find
among
others the
following
examples
of mixed terms: social
noxiousness,
material
profit,
motor
vehicle,
state of inebriation. In the case of mixed
terms,
the term has
both
legal
and factual criteria of
applicability.
Its
meaning
is not
only
and not
wholly stipulative,
but
empirical
as well. Such terms are
usually
introduced into a
legal
text
by
means of so-called
regulative
definitions.
Regulative
definitions neither construct the
meaning
of
the term as in the case of constructive definitions nor state the
pre-
existing meaning
of it as in the case of
descriptive
definitions,
but
they specify
or
modify
the
pre-existing meaning
of a
given
term
taking
into account
legal requirements.
I think that the same idea
is
expressed by
John Searle's notion of declarative and constitutive
rules.17
However,
Searle does not differentiate rules that are both
declarative and constitutive.
In
my opinion, regulative
definition has
precisely
such a char-
acter. The fact that
lawyers
introduce some terms into
legal systems
by
means of constructive or
regulative
definitions makes under-
standable the thesis that the law creates its own Weltbild.18 Let us
notice that
practically every legal controversy relating
to the law-
fact distinction concerns
precisely
the
category
of mixed terms. The
explanation
of this fact is
very simple.
Since mixed terms have both
legal
and
extra-legal meaning, they may
be
equally
well
qualified
as
legal
terms and as factual terms and each decision in this
respect
is
entirely
conventional.
Using
the
terminology
of
Hart,
they
are
indeed a mixture of law and fact.
However,
a
practitioner
is faced
with a serious
problem
of
categorising
such
terms,
because
legal
16
M. Ockelton: Comments on J. Jackson's.
Questions
of Fact and
Questions
of
Law,
ARSP
1983,
Beiheft
16,
p.
103.
17
J. Searle contrasts in his
paper regulative
and constitutive rules. In order to
avoid
misunderstandings
with the notion of
regulative
definitions I substituted his
expression "regulative
rules"
by
"declarative rules" - see J. Searle: What is
speech
act, (in:)
The
Philosophy
of
Language,
ed.
by
J.
Searle,
Oxford
1972,
p.
41.
18
T. Gizbert-Studnicki: The
Language of
Law and
Weltbild, (in:)
Prawo w
zmieniajacym
sie
spoleczefistwie,
red. G.
Sk#pska,
Krak6w 1992;
P. Nerhot: The
Fact of
Law, (in:)
Autopoietic
Law,
ed. G.
Teubner, Berlin,
New York
1988,
p.
325.
469
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LECH MORAWSKI
practice
and
legal procedures,
unlike
legal theory,
make use of a
dual and not a
triple
division with
respect
to the law-fact
questions.
Logicians
could
say you
are
equally justified
in
assigning
mixed
terms either to the
category
of
legal
terms or to the
category
of
factual
terms,
but if
you
make a decision
you
have to be consistent
qualifying
all mixed terms to one or other
category. Unfortunately,
lawyers
in
categorising
mixed terms follow rather
policy
reasons
than
logical
reasons.19
For
instance,
if
they
want to ensure
uniformity
and
predictability
of
jurisdiction, they usually assign
mixed terms to the
category
of
legal
terms,
just
because
only
in that case
may appellate
courts
control the
judgements
of lower courts.
Owing
to
that,
in
judicial
practice
the distinction between
legal
and factual terms does not rest
on
any
consistent
principle.
The next reason
why
the law-fact distinction is so troublesome
for
lawyers
refers to the status of
applicability
rules.
Here,
I assume
that the law-fact distinction is related
solely
to
legal
texts. There
are, however,
good
reasons to
accept
as
applicability
rules not
only
rules embodied in
legal
texts
(by legal
texts I mean here
statutes),
but also rules formulated
by
courts or even
by jurisprudence.
As
Jackson
puts
it:
Judges
have
very
often
given
their own
meaning
to
apparently ordinary
words which are not defined in statute.20 M.
Ockelton
exemplifies
this in the
following way:
the
phrase
'a
person
driving
a vehicle' was an
ordinary
use of
words,
but this
phrase
has
been
subject
to considerable
judicial interpretation.21
The decision
one reaches in this matter
depends,
of
course,
on what is considered
a source of law in a
given legal system.
But if we make a decision
extending
a set of
applicability
rules,
a set of
legal
terms will be
radically
extended as well.
We
may
sum
up
this
part
of the discussion
by saying
that there
are at least three reasons which make a strict demarcation of
legal
and factual terms so difficult and
confusing.
- the
methodological
status of mixed terms which have
proper-
ties of both
legal
terms and factual
terms,
19
J.
Jackson,
op.
cit.,
p.
92.
20
J.
Jackson,
op.
cit.,
p.
92. See also L.
Morawski,
p.
191.
21
M.
Ockelton,
op.
cit.,
p.
104.
470
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LAW, FACT AND LEGAL LANGUAGE
- the fact that
courts,
in
classifying legal
and factual
terms,
do
not follow
any
consistent criteria with
regard
to mixed
terms,
but come to decisions on
pragmatic grounds,
- the fact that the distinction of
legal
and factual terms is
always
related to a certain class of
applicability
rules,
and if we extend
the class of
applicability
rules we extend
thereby
the class of
legal
terms.
IV
By way
of conclusion to this
paper,
I shall make some remarks
about the semantic status of
legal
terms and some other methodo-
logical questions.
An
analogy
with theoretical terms will be useful
here as well. With
respect
to semantic
problems
we
may distinguish
two basic
positions:
semantic realism and semantic instrumentalism.
Semantic realism claims that
legal
terms refer to entities that have an
existence of their own in the sense
they
denote
properties
or
objects
belonging
to the
physical
world. In
turn,
semantic instrumentalism
holds that
legal
terms do not denote
any
real
properties
or
objects,
but serve
merely
as technical tools of
presentation
of
legal
material
and as 'inference tickets'
(G. Ryle) enabling
us to connect factual
happenings
with
legal
effects in a more
easy
and
simple way.22
In
jurisprudence,
the
majority
view favours the
position
of semantic
instrumentalism,
and I
agree
with this view.23 This
fact, however,
as
O.
Weinberger rightly pointed
out,
does not
compel
us to
conceptu-
alise
legal
terms in a Platonistic
way.
For
although
the entities
they
refer to do not have an existence of their own
independent
from
the existence of material
objects, through applicability
rules
they
have connections with material
objects
and
processes.24
Otherwise,
we would never be able to ascertain
whether,
for
instance,
we have
concluded a
contract,
transferred some
property,
or made a will.
22
R. Tuomela: Theoretical
Concepts,
Wien
-
New York
1973,
p.
8. See also C.
Hempel, op.
cit.
23
A. Ross: On Law and
Justice,
London
1958,
pp.
159, 174,
178. See also his
paper
"Tu-Tu",
Harvard Law Review 1957/70.
24
N.
MacCormick, O.
Weinberger:
An Institutional
Theory
of Law ....
p.
86.
471
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LECH MORAWSKI
Even Hart admits that
legal
statements
may
be used
descriptively
and
qualified
as true or false.25
The
analogy
with theoretical terms is also useful in
considering
the functions of
legal
terms. Like theoretical
terms,
legal
terms
have
usually only
a
partial interpretation
in
legal language.
That
is,
they
are not defined
by
a
complete
set of
necessary
and sufficient
conditions.26 In
analytical philosophy,
this feature of
legal
terms
is described as
openness
or
defeasibility.27 Only
for this
reason,
without
making any ontological assumptions, legal
statements are
usually
not
equivalent
to factual statements and cannot be reduced
to them. This follows from the
simple
fact that
applicability
rules
introducing legal
terms have
mostly
the structure of
partial
defini-
tions
(x)[Fl(x) ...Fn(x)
=X
L(x)])
and not of normal definitions
((x)[Fl (x)
...
Fn(x)
X
L(x)]).
Let us notice that
irreplaceability
of
legal
statements
by
factual statements is here
justified by purely
logical
reasons,
that
is,
the fact that
partial
definitions have the
logical
structure of
implication
and not of
equivalence,
and this is
completely independent
from the debatable
ontological
status of
entities to which
legal
terms refer.28
Legal
terms in a
legal system
also fulfil functions
analogous
to
those of theoretical terms in scientific theories.
Connecting
a
variety
of factual
happenings
and
legal
effects,
they
afford the
simplicity
and coherence of
legal
texts.29
They
make
legal
texts more
capable
of
growth (Rechtsfortbildung).
For,
if
legal
terms do not denote
directly any
observable
objects
or
processes,
then it is easier to
expand
or restrict their
meaning interpretatively,
and in this
way
to
adjust
them to
new,
unexpected
circumstances.30
25
H.L.A. Hart: The
Ascription
of
Resposibility
and
Rights,
(in:)
Logic
and
Language,
Oxford
1963,
p.
156.
26
C.
Hempel:
The Theoretician's. Dilemma ...,
p.
50;
K.
Popper: Objective
Knowledge
...,
p.
106.
27
H.L.A. Hart: The
Ascription
of
Responsibility
and
Rights
...,
pp.
148,
154
and Definition and
Theory
in
Jurisprudence,
Oxford
1953,
p.
7.
28
L. Morawski: Law-Fact Distinction and its
Applications
....
p.
195.
29
A. Ross demonstrates this in a brilliant
way
-
see On Law and
Justice,
London
1958,
p.
171.
30
With
respect
to theoretical terms in scientific theories
compare
C.
Hempel:
The Theoretician's. Dilemma
...,
p.
67;
R. Tuomela: Theoretical
Concepts
....
p.
6.
472
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LAW,
FACT AND LEGAL LANGUAGE
Now,
we
may briefly
summarise the main
points relating
to the
status and functions of
legal
terms in
legal systems:
-
legal
terms
usually
refer to unobservable
entities,
-
they
are introduced into the
legal system by
means of
applica-
bility
rules
taking
the form of
partial
definitions rather than that
of normal
(complete)
definitions,
-
they
make
legal
texts more
flexible,
simple
and coherent and
less casuistic and in this
way they
facilitate
legal reasoning.
Thus,
it is
wholly
understandable
why,
in more advanced
legal
cultures
(say
in Roman law or
contemporary
law),
legislators
drafting legal
texts use
primarily legal
terms whereas in less
advanced societies
(Medieval law) they
tend to formulate
legal
texts
in less abstract factual terms.
University
of Torun
ul. Chabrowa 15
87-100 Torun
Poland
(E-mail: morawski@ce.uri.torun.pl)
473
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