Fact

“It’s a fact!” is a way of ending a conversation, with the intimation that the matter imposes itself upon us, in a manner that does not leave open the possibility of challenge. The basis of the impossibility of challenge, usually unarticulated, is that a fact is an ascertained reality that simply exists, and that as such it is not open to debate (leaving aside the possible challenge to the very existence of the fact). That is very much the way in which the law represents the fact: as something with which it may be in relation, but wholly distinct in its essence. It is interesting to stop and consider the extent to which the law is wedded to this construct, before turning to consider the implications for law of the suggestion that facts are made, not born. Where does the fact come from? This might come across as a strange question, but in fact (!) it is one that bears pondering. The fact emerged as an autonomous social concept as a by-product of the emergence of formalized law. As such, the law has played a central role in the elaboration of a concept that has spread to other disciplines and entered the public imagination as an idea necessary to give meaning to human existence. The fact, as a stand-alone concept, came from the law, but it was created in a fit of inattention while jurists were devoting enormous energies to the study of legal norms and legal institutions. Still today, with one limited exception to which I shall come presently, a reflection on the concept of the fact is not thought necessary to accompany a reflection on the concept of law, even though the former implies the latter. Many faculties of law, like McGill, have a course on Foundations of Law, but none has a course on Foundations of Fact. Law and fact may be the summa divisio of legal discourse, but jurists feel concerned only with one half of the equation. The story of the invention of the fact tracks the story of the emergence of the two great Western legal traditions. Each of the common law and civil law has, in its own distinctive way, supported the emergence of an autonomous concept of fact. The story of the invention of the fact in the common law is an institutional one. The desire to project royal authority throughout the land despite a limited force led to the creation of the travelling courts, to bring the King’s justice to everyone in the country. At the same time, there was a concern not to attempt to displace local customs. Judges were instructed (by writs) to convene a tribunal in a given place to hear a given complaint, but initially no attempt was made to stipulate the rules that ought to govern the resolution of the dispute. Instead, a jury of local men, “true and free,” would determine the just outcome of the matter. In this setting, there was no distinct sense of fact and law; instead, the jury would be selected both for their prior knowledge of local practices or customs, and for their familiarity with the people and events involved in the case. In other words, fact and law were fused in the institution and composition of the jury. Gradually, the judge’s task of ensuring that the case remained within the terms of the writ grew to encompass more elaborate, complex rules of procedure and, eventually, substantive law. The common law, in Maine’s expression, “has at first the look of being gradually secreted in the interstices of procedure.” …