It is commonly said that all questions which arise for consideration and determination in a court of justice are of two kinds, being either questions of law or questions of fact. In a sense this proposition is true, but it is one which requires careful examination, because both the term question of law and the term question of fact are ambiguous and possess more than one meaning.
The term question of law is used in three distinct though related senses. It means, in the first place, a question which the court is bound to answer in accordance with a rule of law; a question which the law itself has authoritatively answered, to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. All other questions are questions of fact; using the term fact in its widest possible sense to include everything that is not law. In this sense, every question which has not been predetermined and authoritatively answered by the law is a question of fact; whether it is, or is not, one of fact in any narrower sense which may be possessed by that term. Thus the question as to what is the reasonable and proper punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule of law. But what is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a fixed maximum) a question of fact on which the law has nothing to say. Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact; the law contains no rule for its determination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour is a question of law to be determined in accordance with certain fixed principles laid down in the Negotiable Instruments Act. The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts is one of fact, if the accused is over the age of seven years, but one of law (to be answered in the negative) if he is under that age. The Sale of Goods Act provides that “ where by this Act any reference is made to a reasonable time, the question what is a reasonable time is a question of fact. ” This means that there is no rule of law laid down for its determination.
In a second and different signification, a question of law is a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. Questions of law in this sense arise, not out of the existence of law, but out of its uncertainty. If the whole law was definitely ascertained, there would be no questions of law in this sense; but all questions to be answered in accordance with that law would still be questions of law in the former sense. When a question first arises in a court of justice as to the meaning of an ambiguous statutory provision, the question is one of law in this second sense; it is a question as to what the law is. But it is not a question of law in the first sense, but a question of fact. The business of the court is to determine what, in its own judgment and in fact, is the true meaning of the words used by the legislature. But when this question has once been judicially determined, the authoritative answer to it becomes a judicial precedent which is law for all other cases in which the same statutory provision comes in question. The question as to the meaning of the enactment has been transformed from one of fact into one of law in the first sense; for it has in all future cases to be answered in accordance with the authoritative interpretation so judicially placed upon the enactment. The judicial interpretation of a statute, therefore, represents a progressive transformation of the various questions of fact as to the meaning of that statute into questions of law (in the first sense) to be answered in conformity with the body of interpretative case-law so developed.
There is still another and third sense in which the expression question of law is used. This arises from the composite character of the typical English tribunal and the resulting division of judicial functions between a judge and a jury. The general rule is that questions of law (in both of the foregoing senses) are for the judge, but that questions of fact (that is to say, all other questions) are for the jury. This rule, however, is subject to numerous and important exceptions Though there are no cases in which the law (in the sense, at least, of the general law of the land) is left to a jury, there are many questions of fact that are withdrawn from the cognisance of a jury and answered by the judge. The interpretation of a document, for example, may be, and very often is, a pure question of fact, and nevertheless falls within the province of a judge. So the question of reasonable and probable cause for a prosecution; which arises in actions for malicious prosecution; is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is mere matter of fact, undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only.
We proceed now to consider more particularly the nature of questions of fact, already incidentally dealt with in connection with questions of law. The term question of fact has more than one meaning. In its most general sense it includes all questions which are not questions of law. Everything is matter of fact which is not matter of law. And, as the expression question of law has three distinct applications, it follows that a corresponding diversity exists in the application of the contrasted term. A question of fact, therefore, as opposed to a question of law, means either
There is, however, a narrower and more specific sense, in which the expression question of fact does not include all questions that are not questions of law, but only some of them. In this sense a question of fact is opposed to a question of judicial discretion. The sphere of judicial discretion includes all questions as to what is right, just, equitable, or reasonable; so far as not predetermined by authoritative rules of law but committed to the liberum arbitrium of the courts. A question of judicial discretion pertains to the sphere of right, as opposed to that of fact in its stricter sense. It is a question as to what ought to be, as opposed to a question of what is. Matters of fact are capable of proof, and are the subject of evidence adduced for that purpose Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the court. In determining questions of fact the court is seeking to ascertain the truth of the matter, in determining questions of judicial discretion it seeks to discover the right or justice of the matter. Whether the accused has committed the criminal act with which he is charged, is a question of fact; but whether, if guilty, he should be punished by way of imprisonment or only by way of fine, is a question of judicial discretion or of right. The Companies Act empowers the court to make an order for the winding-up of a company if (inter alia) the company is unable to pay its debts or the court is of opinion that it is just and equitable that the company should be wound up. The first of these questions is one of pure fact, whereas the second is a question of judicial discretion. The Divorce Court is empowered to grant divorce for adultery, and to make such provision as it may deem just and proper with respect to the custody of the children of the marriage. The question of adultery is one of fact; but the question of custody is one of right and judicial discretion.
Doubtless, in the wider sense of the term fact, a question whether an act is right or just or reasonable is no less a question of fact than the question whether that act has been done. But it is not a question of demonstrable fact to be dealt with by a purely intellectual process; it involves an exercise of the moral judgment, and it is therefore differentiated from questions of pure fact and separately classified.
Having regard to this distinction, all matters and questions which come before a court of justice are of three classes:
In matters of the first kind, the duty of the court is to ascertain the rule of law and to decide in accordance with it. In matters of the second kind, its duty is to exercise its moral judgment, in order to ascertain the right and justice of the case. In matters of the third kind, its duty is to exercise its intellectual judgment on the evidence submitted to it in order to ascertain the truth. On the trial of a person accused of theft, for example, the question whether the act alleged to have been done by him amounts to theft criminal offence of theft is a question of law, to be answered by the application of the rules which determine the scope and nature of the offence of theft and distinguish it from other offences, such as that of obtaining goods by false pretences; the question whether he has done the act so alleged against him is a question of fact, to be determined in accordance with the evidence; and the question as to what is the just and reasonable punishment to be imposed upon him for his offence is a question of right or judicial discretion, to be determined in accordance with the moral judgment of the court.
The existence and development of a legal system represents the transformation, to a greater or less extent, of questions of fact and of judicial discretion into questions of law, by the establishment of authoritative and predetermined answers to these questions. This process of transformation proceeds chiefly within the sphere of judicial discretion, and only to a smaller extent within the sphere of pure fact. In respect of questions as to what is just, right, and reasonable, the purpose and effect of a system of law is to exclude and supersede to a very large extent the individual moral judgment of the courts, and to compel them to determine these questions in accordance with fixed and authoritative principles which express the established and permanent moral judgment of the community at large. Natural or moral justice is to a very large extent transmuted into legal justice ; jus naturale becomes jus positivum. The justice which courts of justice are appointed to administer becomes for the most part such justice as is recognised and approved by the law, and not such justice as commends itself to the courts themselves. The sphere of judicial discretion is merely such portion of the sphere of right as has not been thus encroached upon by the sphere of law.
To a lesser extent, even questions of pure fact are similarly transformed into questions of law. Even to such questions the law will, on occasion, supply predetermined and authoritative answers. The law does not scruple, if need be, to say that the fact must be deemed to be such and such, whether it be so in truth or not. The law is the theory of things, as received and acted upon within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. Partly by deliberate design and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, may fail in complete coincidence. We have ever to distinguish that which exists in deed and in truth from that which exists in law. Fraud in law, for example, may not be fraud in fact, and vice versa That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud and what shall not, this principle may or may not be true, and so far as it is untrue the truth of things is excluded by the legal theory of things.
This discordance between law and fact may come about in more ways than one. Its most frequent cause is the establishment of legal presumptions, whereby one fact is recognised by law as sufficient proof of another fact, whether it is in truth sufficient for that purpose or not. Such legal presumptions; presumptiones juris; are of two kinds, being either conclusive or rebuttable. A presumption of the first kind constrains the courts to infer the existence of one fact from the existence of another, even though this inference could be proved to be false. A presumption of the second kind requires the courts to draw such an inference even though there is no sufficient evidence to support it, provided only that there is no sufficient evidence to establish the contrary inference. Thus a negotiable instrument is presumed to be given for value, a person not heard of for seven years is presumed to be dead, and an accused person is presumed to be innocent. A fact which by virtue of a legal presumption is deemed by law to exist, whether it exists or not, is said in the technical language of the law to exist constructively or by construction of law. Constructive fraud or constructive notice, for example, means fraud or notice which is deemed to exist by virtue of an authoritative rule of law, whether it exists in truth or not.
Another method by which the law on occasion deliberately departs from the truth of things for sufficient or insufficient reasons, is the use of the device known as a legal fiction; fiotio juris . This was a device familiar to primitive legal systems, though mostly fallen out of use in modern law. The most important legal fiction. recognised by modem law is that of incorporation; the fiction by which a body of individual persons, such as a trading company, a university, or the population of a city, is regarded by law as being in itself a person, distinct from the individuals of which that body is composed, and capable as such of owning property, making contracts, incurring obligations, and otherwise doing and suffering what real persons can do and suffer. The nature and purpose of such fictitious legal personality will be considered fully at a later stage of this inquiry. Another important legal fiction recognised by modem systems is that of the adoption of children; a fiction which played a great part in the law of primitive communities. An adoptive child is a child who is not in fact the child of its adopting parent, but is deemed to be such by a legal fiction, with the same results in law as if this fictitious parentage was real.
A very large and important part of the legal system consists of that case-law which arises from the authoritative interpretation of statutes by the law courts. The whole of this law represents the transformation of questions of fact in to the meaning of statutes into questions of law to be answered for the future in accordance with the judicial precedents by which that meaning has been already authoritatively declared. This process of interpretation is to a large extent based on a legal fiction; the fiction, that is to say, that the questions which arise in the application of a statute were actually present to the mind of the legislature when the statute was passed, that the legislature really possessed an intention with respect to them, and that this intention is expressed in the words of the enactment. In most cases in which a statute gives rise to any doubts or difficulties requiring judicial solution by way of interpretation, this assumption is unfounded. The difficulty has arisen because the legislature had not in truth any coherent and complete intention at all What the courts in reality do in interpreting an ambiguous, inconsistent, or otherwise imperfect enactment, is to consider and determine what the legislative intention would have been had the particular point been presented to the mind and attention of the legislature. But this presumed and constructive intention of the legislature can only be gathered from judicial consideration as to what is just and reasonable. Under the guise of determining what a statute does in fact say and mean, the courts, in all matters in which the statute is put to silence by its ambiguities, omissions, or inconsistencies, supplement the expressed intention of the legislature by reading into the statute the rules of justice, reason, and public policy, so far as consistent with that expressed intention. The case-law created by the process of statutory interpretation must to a large extent, therefore, be regarded as an authoritative judicial expression of those rules of justice, reason, and public policy, rather than as an authentic ascertainment of the actual facts as to the intention of the legislature.
The same question may be partly one of law and partly one of fact or judicial discretion. This is so in two senses. In the first place, the question may be in reality composite, consisting of two or more questions combined, and the several components may be of different natures in this respect. The question, for example, whether a partnership exists between A and B is partly one of fact (vis., what agreement has been made between them) and partly one of law (viz., whether such an agreement is sufficient to constitute the legal relation of partnership). Similar composite questions are innumerable. In the second place, there are many cases in which the freedom of judicial discretion on any point is not wholly taken away by a fixed rule of law, but is merely restrained and limited by such a rule, and is left to operate within the restricted sphere so allowed to it In such a case the question to be determined by the court is one of law so far as the law goes, and one of fact or judicial discretion as to the rest. The proper penalty for an offence is usually a question of this nature. The law imposes a fixed maximum, but leaves the discretion of the court to operate within the limits so appointed. So, in many cases, judicial discretion, instead of being excluded, is merely limited and controlled by rules of law which determine the general considerations which are to be taken into account as relevant and material in the exercise of this discretion. The discretion of the court has not been taken away, but it must be exercised within the limits, in the manner, and upon the considerations thus authoritatively indicated by law.