What about the non-legal facts: Revising Allen and Pardo’s analytical distinction between law and fact
| Author | Ellika Sevelin |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| DOI | http://doi.org/10.1177/1365712719851043 |
| Subject Matter | Articles |
Article
What about the non-legal
facts: Revising Allen
and Pardo’s analytical
distinction between
law and fact
Ellika Sevelin
Lunds Universitet, Lund, Sweden
Abstract
This paper deals with the distinction between law and fact. In the article ‘The myth of the law-
fact distinction’ (Allen and Pardo, 2003a), Ronald Allen and Michael Pardo argue that there is no
ontological, epistemological or analytical distinction between law and fact. Instead, they claim
that the distinction ought to be understood pragmatically, by considering whether the judge or
jury is in the best position to decide the question. The problem with this is that it does not add
to the understanding. In a soon-forgotten passus they suggest that the distinction is between
legal and non-legal facts, rather than between law and fact. In this paper I revise the article by
Ron and Pardo and make an argument in favour of the distinction between legal and non-legal
facts. The notion of ‘legal’ and ‘non-legal’ underlines the fact that the dichotomy is relevant
specifically from a legal point of view. In the legal context different consequences apply to law
and fact, the same is not true in a non-legal context.
Keywords
Evidence, fact, jurisprudence, law, procedural law
Introduction
When discussing the law/fact distinction,
1
one of the more influential texts in recent years has been ‘The
Myth of the Law-Fact distinction’ by Ronald Allen and Michael Pardo, in this paper referred to as ‘the
Corresponding author:
Ellika Sevelin, Lunds Universitet, Box 207, Lund, 221 00, Sweden.
E-mail: ellika.sevelin@jur.lu.se
1. Law and fact refer here to the categorisation in a legal context. I will make use of the terms ‘law and ‘fact’ for two reasons. First,
it benefits to the readability of the text. Secondly, they are the terms most often used in Anglo-Saxon texts, and they are the
The International Journalof
Evidence & Proof
2019, Vol. 23(4) 349–365
ªThe Author(s) 2019
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DOI: 10.1177/1365712719851043
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Myth’.
2
The article is generally interesting as it, besides being among the more cited articles on the law/
fact distinction, stands out as being one of the few that takes a more theoretical approach to the problem.
In the Myth, Allen and Pardo review many of the more common understandings of the law/fact
distinction. They conclude that the distinction cannot be understood ontologically, epistemologically or
analytically. Allen and Pardo, instead argue that the distinction ought to be understood functionally. This
paper will depart from Allen and Pardo’s article; it will assume the critique against the ontological and
epistemological distinction, but rather than proposing the functional distinction, I will argue in favour for
possibility that is labelled an analytical distinction by Allen and Pardo; the distinction between legal and
non-legal fact.
The main point of this paper is to argue in favour of understanding the law/fact distinction in terms of
legal and non-legal facts. My arguments connect to Allen and Pardo’s article in two ways, first, I rely on
their arguments against the ontological, epistemological and analytical distinctions as I argue in favour
of an alternative definition. Furthermore, my argumentation departs from Allen and Pardo’s discussion
of analytical definition and their mention of the distinction between legal and non-legal facts. I will
argue that Allen and Pardo present no argumentation against the legal/non-legal fact distinction. Finally,
as I propose a different definition than Allen and Pardo, I will also present argumentation against their
definition. By reference to the existing discussion, I will claim that the functional distinction has low
explanatory potential.
I being by giving a short review of the Myth, focusing on the parts that connect to the argument of this
paper. As I claim that Allen and Pardo fail to argue convincingly against all possible analytical distinc-
tions that they mention, I will discuss this section of the Myth in deep. Following this I will shortly turn
to arguments made in the scholarly debate that holds the functional distinction to be circular. Finally, I
return to Allen and Pardo’s claim that the distinction is perhaps one between legal and non-legal facts,
and argue that an elaboration of this suggestion is a promising basis for the law/fact distinction.
Revisiting the myth
Introduction
By argumentation in the Myth, Allen and Pardo question the possibility of an intentional distinction
between law and fact; whether it is ontological, epistemological or analytical. Instead they argue that the
distinction is functional, that is, extensional.
The extension of a concept is the set of all instances to which the concept can be truly applied
(Putnam, 1975: 216 f). The distinction between the extension and intension is described by Hila ry
Putnam:
[...] consider the compound terms ‘creature with a heart’ and ‘creature with a kidney.’ Assuming that every
creature with a heart possesses a kidney and vice versa, the extension of these two terms is exactly the same.
But they obviously differ in meaning. Supposing that there is a sense of ‘meaning’ in which meaning ¼
extension, there must be another sense of ‘meaning’ in which the meaning of a term is not its extension but
something else, say the ‘concept’ associated with the term. Let us call this ‘something else’ the intension of
terms used by Allen and Pardo. Even though many authors have opted for other terms such as ‘finding of fact’ or ‘statements of
law’, none of those have been more commonly accepted.
2. At the same time as the Myth was published, Allen and Pardo also published another article on the subject of the distinction
between fact and law, ‘Facts in law and facts of law’, referred to as ‘the Facts’. The two articles ‘the Myth’ and ‘the Facts’
discuss broadly the same issues. For matters of convenience, I will in this text focus mainly on the more-cited one, the Myth, as
the impact of that one can be assumed to be bigger. I will only refer to ‘the Facts’ when it says something that has bearing on my
argumentation and that is not mentioned in ‘the Myth’. I will also quote it occasionally when I find it to be more illustrative for
what I want to say.
350 The International Journal of Evidence & Proof 23(4)
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