Online research in philosophy

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 physical 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.

This essay partly builds on and partly criticizes a striking idea of Dieter Henrich. Henrich argues that Kant's distinction in the first Critique between the question of fact (quid facti) and the question of law (quid juris) provides clues to the argumentative structure of a philosophical "Deduction". Henrich suggests that the unity of apperception plays a role analogous to a legal factum. By contrast, I argue, first, that the question of fact in the first Critique is settled by the Metaphysical Deduction, which establishes the purity of origin of the Categories, and, second, that in the second Critique, the relevant factum is the Fact of Reason, which amounts to the fact that the Moral Law is pure in origin.

Courts and commentators have struggled for years to identify rules to explain and justify certain widely-shared intuitions about impossibility attempts, and they have proposed rules variously based upon (1) what mistakes actors make, (2) what intentions actors possess, and (3) what conduct actors perform. None of the proposals fully succeeds, however, and none is able to explain the widely-shared intuition, which underlies Sandy Kadish's inventive hypothetical regarding Mr. Law and Mr. Fact, that some attempts based upon mistakes of law are just as blameworthy as attempts based upon mistakes of fact. I propose an alternative rule that, I believe, not only explains where and why people possess widely-shared intuitions regarding impossibility attempts (including regarding Mr. Law and Mr. Fact), but also explains where and why people have conflicting intuitions. I argue that widely-shared intuitions of blameworthiness and non-blameworthiness regarding impossibility attempts are a function, respectively, of whether informed citizens of the jurisdiction that enacted the statutory offense that the defendant allegedly attempted to commit widely believe or disbelieve that he would have been a threat to interests that the statute seeks to protect - a determination, in turn, that is a function of whether they widely believe or disbelieve that he would have committed the offense under counterfactual circumstances that they fear could have obtained.

This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.

The paper explains and differentiates the concept of `fact' in the legal setting. Fact and evidence, fact/falsity distinguished; fact and law considered -- a real difference or a pragmatic device? Questions of fact and degree considered, in themselves and in the context of jury trial and of appeals. Primary fact, factual inferences from primary fact, questions of classification of fact are considered. Whether inference is supported by evidence, and whether classification is correct may be questions of law. Issues of fact and opinion, fact and comment, relative to freedom of speech, defamation etc: no clear distinction available. Legal problems concerning absence of workable distinctions.

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.

Whether we understand it descriptively or normatively, the slogan that ignorance of the law is no excuse is false. Our legal system sometimes excuses those who are ignorant of the law on those grounds and should. Still, the slogan contains a grain of truth; mistakes of law excuse less readily than mistakes of fact, and ought to. This paper explains the asymmetry by identifying a principle of excuse of the form “If defendant D has a false belief that p and _____, then D is excused”, which has the following feature: it is true frequently when p is a non-legal proposition, but it is false often when p is a proposition about the law. Under this principle of excuse, mistakes excuse by showing the agent to have acceptable commitments for recognizing, weighing, and responding to reasons. Many mistakes of fact show this; they show that the agent’s deliberation led to objectionable action because of faulty inputs and not to fault in the deliberation itself. Mistakes of law, by contrast, frequently indicate that the agent has faulty commitments when it comes to legal reasons; they therefore do not provide excuse under the proposed principle of excuse. It is argued that this explanation of the asymmetry between mistakes of fact and law takes us a great distance towards explaining the relevance of mental state to responsibility, an issue of great importance to moral philosophy.

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.

Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.