Article Dans Une Revue Canadian Journal of Law and Jurisprudence Année : 2026

Against "Legal Facts"

Mathieu Carpentier

Résumé

In recent years, the controversy between legal positivists and their opponents has been reframed as a debate on whether 'legal facts'-aka facts about the 'content of the law'are determined by social or moral facts. This new framing ought to be resisted, for two reasons. First, it is biased against legal positivism, by making it the default picture that the 'content of the law' is not a set of legal norms atomistically individuated-which is essential to positivism-but a set of 'facts' ("the fact that Jones legally ought to pay $35 to Smith") which can then be grounded holistically in moral facts. Second, talk of 'legal facts' has been instrumental in the recent metaphysical turn in jurisprudence, especially in the growing literature on grounding and law. Jurisprudes-of all stripes-should resist it, as it impoverishes and obfuscates many important philosophical questions about law.

In this paper, I set out to argue that we should stop talking about 'legal facts' in general jurisprudence. This goes especially for legal positivists who seem to think that positivism is a theory about the way 'legal facts' depend on-are determined by, supervene on, are grounded in-social or moral facts. This is a very neat way to frame the issues at hand: It is all about facts of various sorts. It is facts all the way down. Neat as it is, I will argue that this framing should be resisted because as such it is a Trojan Horse. The point about the Horse was that it was meant to be confusing: The Trojans were legitimately puzzled about what the Horse was for (was it a gift? an offering? a supernatural apparition?) and, out of such confusion, they allowed it in.

I will argue that the same goes for 'legal facts' as they were introduced in jurisprudential debates by prominent non-positivists (especially Mark Greenberg). 'Facts' about law (or facts about the 'content' of law) are of very different kinds. It is reasonable to assume that some facts about law can only be ascertained via recourse to moral considerations. So, if positivism is about 'legal facts' and at least some 'legal facts' depend on 'moral facts', then positivism is indefensible. Moreover, 'legal facts' are often used as a Trojan horse for a holistic conception of legal content which is, in fact, incompatible with positivism's core tenets: Positivists are therefore asked to provide a justification for their theses in a framing which is overtly hostile to them. Positivism can be defended as a jurisprudential tenet if and only if we show that it was never about 'legal facts' per se, but about a specific subset of 'facts' about law, and that allowing the issue to be framed in terms of 'legal facts', period, is just a selfinflicted blow.

Domaines

Fichier principal
Vignette du fichier
against-legal-facts (3).pdf (369.76 Ko) Télécharger le fichier
Origine Fichiers éditeurs autorisés sur une archive ouverte
Licence

Dates et versions

hal-05549365 , version 1 (16-03-2026)

Licence

Identifiants

Citer

Mathieu Carpentier. Against "Legal Facts". Canadian Journal of Law and Jurisprudence, 2026, pp.1 - 37. ⟨10.1017/cjlj.2025.10061⟩. ⟨hal-05549365⟩

Collections

20 Consultations
39 Téléchargements

Altmetric

Partager

  • More