P. Tillers, On the Possible Distinction between Legal Uncertainty and Factual Uncertainty, Section 1, Scattered Background Material for the 2003 Konstanz Lectures by Peter Tillers (2003) (footnote omitted):
Legal theorists
in the U.S. do devote much attention uncertainty in the law, but “theoretical”
law teachers in the U.S. worry far more about legal uncertainty than
about factual uncertainty. In American legal literature in the last
quarter of the 20th century, the phenomenon or problem legal uncertainty
has often been referred to as the phenomenon or problem of “legal indeterminacy.”
This linguistic usage came into vogue as the “Critical Legal Studies” movement
came into vogue. The literature on “legal indeterminacy” is now vast. See, e.g.,
the following very small sample (largely borrowed from the article by
G. Lawson cited further below) of the literature on “legal indeterminacy”: Anthony
D'Amato, Can Any Legal Theory Constrain Any Judicial Decision?, 43 University
of Miami Law Review 513 (1989); Anthony D'Amato, Can Legislatures Constrain
Judicial Interpretation of Statutes?, 75 Virginia Law Review 561 (1989);
Anthony D'Amato, Pragmatic Indeterminacy, 85 Northwestern University
Law Review 148 (1990); Stanley Fish, Dennis Martinez and the Uses of Theory,
96 Yale Law Journal 1773 (1987); Stanley Fish, Don't Know Much About the
Middle Ages: Posner on Law and Literature, 97 Yale L.J. 777 (1988); Ken
Kress, A Preface to Epistemological Indeterminacy, 85 Northwestern University
Law Review 134 (1990); Ken Kress, Legal Indeterminacy, 77 California
Law Review 283, 286 (1989); J. Lipkin, Beyond Skepticism, Foundationalism
and the New Fuzziness: The Role of Wide Reflective Equilibrium in Legal Theory,
75 Cornell Law Review 811 (1990); Frederick Schauer, Easy Cases, 58 S. California
Law Review 399 (1985); Joseph Singer,The Player and the Cards: Nihilism and
Legal Theory, 94 Yale L.J. 1 (1984); Steven L. Winter, Bull Durham and
the Uses of Theory, 42 Stanford Law Review 639 (1990).
When American legal theorists speak of “legal indeterminacy,” they are referring, in the main, to the problem of the uncertain meaning of legal rules, they are alluding to semantic uncertainty in legal rules, they are directing attention to uncertainty of propositions about the meaning of legal rules. When legal theorists refer to “legal indeterminacy,” they generally are not trying to direct attention to the possible difficulty of determining whether the facts or circumstances that warrant or license the application of a legal rule are or are not present.
Interpretation – the use of particular techniques for determining the meaning of legal pronouncements in source materials such as statute books and judicial opinions – is a prominent topic in legal scholarship. The reason for this is at least in part due to the importance that society as a whole attaches to keeping levels of uncertainty about the existence and the meaning of legal rules at some “tolerably” low level.
There have been
scattered exceptions to the pervasive indifference of U.S. legal theorists about
the pervasive phenomenon of factual uncertainty. See, e.g., Jerome Frank, Law and the Modern Mind (1st
ed., 1930). See also J. Frank, Courts
on Trial: Myth and Reality in American Justice (1949).
During the last 30 years an important movement known as the “new evidence scholarship” has emerged. Some of the participants in this movement or tendency engage in what can only be called “philosophical” analysis of factual uncertainty and inference. However, until recently, this movement has had relatively little impact on the sort of “general” legal theorizing that has been done by scholars such Ronald Dworkin and H.L.A. Hart. Please see Section 2 of this Handout for references to literature in and about the “new evidence scholarship.”
In my
My decision to focus on factual uncertainty in law might be challenged on the ground that my decision rests on an invalid presupposition: the presupposition that there is a difference between factual hypotheses and legal hypotheses.
The distinction between law and fact is common in U.S. law. The distinction is often also frequently made by U.S. law teachers. To be sure, it is frequently acknowledged both in U.S. legal doctrine and by U.S. legal theorists that questions of fact and questions of law are not entirely disjoint. Nonetheless, it is generally accepted in U.S. legal circles that questions of fact and questions of law are at least substantially disjoint .
Despite the nearly-unanimous view that there is some meat to the law-fact distinction, there is one important respect in which it is far from certain that the conventional disjunction between factual hypotheses and legal hypotheses – the conventional disjunction, we might say, between hypotheses about spatio-temporal events and hypotheses about legal rules and doctrines –, there is one important respect in which it is uncertain that the putative law-fact distinction exists:
It is far from certain that the set of propositions about the world and set of propositions about legal rules are disjoint – because it is far from certain that propositions about legal rules can be said to be propositions that do not belong to the class of propositions that are about the world.
Given the dubious epistemological and ontological foundations of the law-fact distinction, it is not surprising that the customary distinction between law and fact has not always been entirely uncontroversial, and it is not surprising that some controversy about the alleged distinction continues to this day.
In recent years Mirjan Damaška has argued convincingly that both in medieval English law and in medieval occidental law in general the distinction between law and fact both was either non-existent or very diffuse. See, e.g., M. Damaška, Rational and Irrational Proof Revisited, in J.F. Nijboer & J.M. Reijntjes, eds., Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence 75 (1997) (proceedings of 1995 conference).
There are strands in Hans Kelsen’s philosophy of law and in the school of legal philosophy known as “Scandinavian Realism” that suggest that at least some legal theorists who swim in the general intellectual tradition known as “legal positivism” believe (wittingly or unwittingly) that even if legal norms belong to a category of existence or knowledge that is somehow separate from the realm of “facts,” methods of determining the existence and meaning of norms and facts are or ought to be similar. See generally, e.g., Hans Kelsen, General Theory of Law and State (1945); Karl Olivecrona, Law as Fact (1st ed., 1939; 2nd ed., 1971).
A few legal theorists in the United States have frontally challenged the law-fact distinction. See, e.g., Peter Tillers, The Value of Evidence in Law, 39 Northern Ireland Law Quarterly 167 (1988);Gary Lawson, Proving Law, 86 Northwestern University Law Review 859, 863 (1992); John Duffy, On Improving the Legal Process of Claim Interpretation: Administrative Alternatives, 2 Washington Journal of Law 109, 122 (2000).
Several distinct types of challenges might be mounted agaimst the law-fact distinction. The most modest challenge would rest on the thesis that the set of propositions about legal rules and the set of propositions about spatio-temporal events overlap – and that, thus, some propositions about legal rules are also propositions about spatio-temporal events. A second and bolder challenge to the law-fact distinction would rest on the thesis that one or both of these sets of propositions – the set of propositions about law and the set of proposition about spatio-temporal states – not only overlap, but are also very fuzzy or rough – “indeterminate” to a substantial degree. (The critique of M. Damaška, mentioned above, seems to fall roughly into this middle category.) The most radical challenge to the distinction would presumably rely on the thesis that all propositions about legal rules are propositions about spatio-temporal states of affairs and that there is no fundamental difference between propositions about legal rules in the spatio-temporal world and other states of the spatio-temporal framework. (An alternative form of this radical thesis might be that the two types of propositions are completely fuzzy or rough – that there is no there there.)
I readily acknowledge that both the nature of law-fact distinction and its existence are uncertain. For purposes of my Konstanz lectures, however, I posit that the law-fact distinction holds water. I can do so without harming my argument because even if the distinction fails – even if the disjunction between the two kinds of hypotheses completely collapses! – my analysis of factual inference remains valid and useful: the web-like structure of evidence and inference that I describe in my lectures remains intact – it continues to exist – even if law is fact and even if argument about law is much like argument about fact. (Indeed, if it turns out that law is fact, and that reasoning about law is (essentially) the same as reasoning about fact, the “bottom line” of my entire argument – which to a large extent rests on the hypothesis of the deleterious effects of time on the strength and stability of uncertain inference in law –, to that extent the bottom line of my argument gains force.)