A Note on Fact and Law
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb02231.x |
| Date | 01 November 1963 |
| Published date | 01 November 1963 |
THE
MODERN
LAW
REVIEW
Volume
26
November
1963
No.
6
A NOTE
ON
FACT
AND
LAW
THE distinction between questions of fact and questions of law is
of
some practical importance but, although
it
has been discussed
frequently in AmericaY1 little has been written about it
in
this
country.2 The object of this article is to analyse the problems
involved in making the distinction in
so
far as these arise in the
application of statutes.
The broad effect of a statutory provision is to declare that
if
a
certain state of affairs exists a certain legal consequence must follow,
e.g.,
if a dangerous part of a machine
in
a factory is not securely
fenced, the occupier is guilty of a criminal offence and may be fined.
Where a statute is invoked, the court is being asked (a) to find
that the certain state of affairs exists with respect to a particular
person
or
thing, and (b) to ordain that the certain legal consequence
must follow in respect of that particular person or thing,
e.g.,
(a)
that
A
was the occupier of factory
F
in which at time
T
a dangerous
part of a machine
M
was unfenced, and (b) that
A
is guilty of a
criminal offence. The
particular proposition can in all but the simplest cases
be
resolved
into a number of sub-propositions,
e.g.,
(i) that, at time
T,
A
was
the occupier of factory
F,
(ii) that, at time
T
in factory
F,
there was
a
machine
My
(iii) that part of
M
was dangerous, (iv) that,
at
time
T,
that part was unfenced.
If
all the sub-propositions are
true, the particular proposition is also true as a matter of logical
necessity.
To
induce the court to affirm the particular proposition, the
party invoking the statute will present, in one form or another,
a
number of statements from which, in his contention, the particular
Let us call the finding (a) the
cc
particular proposition.”
1
Morris, “Law and Fact,”
55
H8rv.L.R. 1303
(1942);
Brown, “Fact and
Law in Judicial Review,” 56 H8rv.L.R.
899
(1943);
Stem,
“Review
of
Findings
of
Administrators, Judges and Juries,”
68
H8rv.L.R.
70
(1944);
Jaff.6, Judicial Review: Queation
,pf
Law,” 69 Harv.L.R. 239 (1965);
’’
Judicial Review: Question
of
Fact, 69 H8rv.L.R.
10‘20
(1955).
2
Farnsworth,
“
’
Fact
’
or
‘
Law
’
in Cases Stated under the Income
Tax
Acts
”
(1946) 62 L.Q.R.
248.
VOL
26
609
21
610
THE
MODERN
LAW
REVIEW
Vot
26
proposition can be inferred.
It
is not essential that each
of
these
statements should yield the inference that the particular proposition
is true; they may each only contribute
to
the inference that
a
sub-
proposition is true and the truth of the
ptlrticiiitlr
proposition will
then follow when all the sub-propositions
are
established.
The task of the court is to decide whether the assertion of the
statements justifies the assertion of the particular proposition.
In
practice, it often happens that only one sub-proposition is dispute&
and the question for the court can be put
in
the form
.‘
Was
A
the
occupier of that factory?
”
or
“
Was that part
of
that machine
dangerous
?
”
Sup-
pose that it is a statutory offence to shoot a wild animal and the
particular proposition is that
A
at
a
certain time and place
shot
a
wild animal. Suppose further that the statements are made by two
witnesses each
of
whom says
on
oath,
‘(
I
saw
A
shoot
u.
wild
animal.” The court must then decide whether the witnesses are
telling the truth and whether they are reliable observers.
If
they
are, the particular proposition is proved and
if
they are
not,
it is
not proved. The question is of course accentuated
if
A
produces
two witnesses who give an alternative version of events which
is
inconsistent with that of the prosecution witnesses,
r.g.,
that
at
the material time
A
was playing cards with them. This
sort
of
question
is
answered by considering the demeanour
of
the witnesses
-“
the manner, appearance, and mode of giving evidence, all
the
outward and visible signs by which men habitually detect false-
hood
or
receive an assurance of truth.” Let us call a question
of
this kind
a
‘‘
truthquestion.”
If,
however, the witnesses merely say that they saw
A
standing
with
a
smoking gun beside the corpse
of
a wild animal, the court
must
first
decide whether they are truthful and reliable
and
then
must determine the further question of whether the particular
proposition can be inferred from the proved statements. This
inference from circumstantial evidence is a matter of probability
and is completely independent of the credibility and reliability
of
the witnesses.
Let
us call this type of question
a
“
probability-
question.” Suppose the
court
is
not content with the two bald statements
“
I
saw
A
shoot
a wild animal
”
and permits
A
to cross-examine the witnesses.
A
might start by asking what kind
of
wild animal
it
was.
If
the
witness says
it
was a dog then the dispute is shown not to be about
a
factual situation but about the use of language-whether a dog
can be described as a wild animal. But if the witness says it was
a tiger,
A’s
attack is rebuffed and he must then ask the witness to
a
Per
Lord Loreburn
L.C.
in
Kilpatrick
v.
Dunlop
(1911)
reported
a8
a
note
to
4
Stem,
loc.
cit.,
pp.
94-97.
The statements before the court may take various form?.
A
third type of question can be di~tinguished.~
Murray
v.
Fraser,
1916 S.C.
623
at
p.
631.
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