Fact and Law

Abstract

This discussion of the problems of distinguishing between questions of fact and questions of law starts from the point of view of the practical lawyer.¹ In legal practice the distinction between fact and law arises in several ways. In Scottish pleading one part of the writ which initiates an action contains a statement of the facts on which the pursuer (plaintiff) relies while another part contains the propositions of law upon which he relies. In English criminal procedure there is an important distinction between matters of law which must be decided by the judge and the matters of fact which must be left to the jury. In the United Kingdom many appeals, particularly in the areas of administrative law and taxation, are restricted to questions of law and there is no appeal on questions of fact. Of course, practical lawyers often take a cynical approach to this distinction and say that if the judge wants to interfere with an administrative decision he will say that it involves a question of law whereas if he thinks the decision is right he will say that it involves a matter of fact and that he cannot interfere with it. However, the theorist must try to make the distinction as best he can.