Abstract
This Chapter, the third of this Part, examines the judicial assessment of the dispute’s factual circumstances. This assessment grounds the determination in the concrete circumstances of the dispute, allowing legal merit to be assessed by reference to the dispute-norm. This Chapter examines how ‘what happened’ is assessed by the judge, and how that assessment is limited. The focus is on underlying concepts and theoretical issues, rather than on the particular mechanisms and procedures utilised.
The Chapter focuses on four principal ‘problems’ that reveal the conceptual objectives, and limitations, of the judicial determination of the factual circumstances of the dispute. These issues profoundly affect how the judge assesses the circumstances of the dispute, and can be conceptualised as follows: (1) The Problem of Relevance, regarding the delineation of the potential infinite circumstances the judge may consider; (2) The Problem of Frame of Reference, regarding the proper frame of reference for the assessment of those circumstances; (3) The Problem of ‘Truth’ and Sufficiency, regarding theoretical limits on the degree of certainty achievable, and the degree of satisfaction sufficient for the purposes of judicial resolution; and (4) The Problem of Practical Process, regarding the practical methods employed to ascertain the facts, and how they can limit the ability of the judge accurately to assess the factual circumstances. This Chapter explores each of these ‘problems’ and how they shape the ability of the judge to construct a sufficient factual basis for the judicial resolution of the dispute.
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- 1.
This demand for concretisation through discrete circumstances limits the type of disputes that are capable of judicial resolution. Esoteric and abstract disputes lack the grounding demands of definite factual circumstances, and cannot be resolved through judicial processes; the abstract contemplation of the moral philosopher is not the method of the judge.
- 2.
Twining (2006), p. 121.
- 3.
As Twining (2006) notes, ‘the first rule of admissibility … is that … only relevant evidence is admissible’: p 121.
- 4.
Another advantage of this abandonment of the syllogistic model is that the ‘classical paradox of philosophy of law’ regarding the circularity of law and fact (see Varga (1994), p. 178) ceases to be troubling as where the division between the two concepts is not strict.
- 5.
Ibid., p. 178.
- 6.
As Varga notes, both in the classical age and in the Roman law redivivus of the Middle Ages, ‘law’ was conceived as ‘fundamental, primary, and unchangedly standing’ to be contrasted with ‘facts’ as ‘subordinated, secondary, unknown’: Varga (1994), p. 178.
- 7.
Ibid., pp. 179–80. Salmond, for example, defines a question of fact as ‘one which has not been … predetermined’: Salmond (1902), p. 19. Similarly, Brown defines questions of fact as ‘those questions which may be determined without reference to any rule or standard prescribed by the state’: Brown (1943), p. 901. Morris eliminates even this aspect of substantive definition to focus on conflict, so that ‘when one of two different versions of events must be accepted, a question of fact is raised’: Morris (1942), p. 1314.
- 8.
Wróblewski (1992), p. 137.
- 9.
- 10.
MacCormick makes a similar point when he argues that there is no theoretical difference between ‘problems of classification’ and ‘problem of interpretation’, but that there may nonetheless be good and ‘sensible’ institutional reasons for differential treatment: MacCormick (1978), pp. 95–7.
- 11.
Though it should be noted that the more uncertain the facts are, the more likely a matter is to be classified as an issue of fact and vice-versa regarding law, so that uncertain law with clear facts becomes an issue of law.
- 12.
Griffiths v J P Harrison Ltd [1962] AC 1, 15 (Lord Reid).
- 13.
Varga (1994), p. 181.
- 14.
This does not render these personal experiences entirely irrelevant, as the judge cannot ground the resolution in the concrete circumstances of their dispute without addressing the experiences of the parties.
- 15.
When I use the term ‘objective’ in this sense, I refer to the concept of a version of events independent of any single viewpoint, removed from the limitations of the perspective of the single subject. For my purposes it is unnecessary to resolve difficult metaphysical issues this viewpoint may raise, and it is perhaps sufficient to consider the ‘objective universe’ as the intuitively understood ‘what really happened’.
- 16.
This aspect of the objective facts as a constraint is described as ‘La contrainte est une situation de fait’ in Champeil-Desplats and Troper (2005), p. 13.
- 17.
Varga (1994), p. 174.
- 18.
Ibid., p. 175.
- 19.
Diaz v Gonzalez, 261 US 102, 261 (1923) (Holmes J).
- 20.
For a useful explanation of this dynamic ‘filtering’ of facts: see Varga (1994), pp. 176–7.
- 21.
Indeed, there is likely to be a significant diminishing marginal return on evidence, so that beyond a certain point even significant amount of further evidence will not significantly affect the certainty of a given inference.
- 22.
Even then, the judge would need to be aware, and informed, of the history and context of each perspective.
- 23.
For example, the familiar common law differentiation between the standards of proof for civil matters (‘balance of probabilities’) and criminal matters (‘beyond reasonable doubt’) demonstrate this relationship, recognising that the social stigma and serious consequences of a criminal conviction require a more onerous degree of satisfaction.
- 24.
I reiterate that my objective here is not to analyse specific models of fact assessment, but to examine the underlying common limitations.
- 25.
For example, experience may have shown that some evidence has an overwhelming tendency to be misleading, distracting or unreliable, so that it should be excluded in the interests of efficiency and accuracy. See the approach taken to similar fact (propensity) evidence: Heydon (2004), pp. 666–7.
- 26.
This can include such issues as methods of examination-in-chief and cross-examination, submission of documentary evidence, length of trial, and the role of written witness statements.
- 27.
Wróblewski identifies four stages in the transfer of information: (1) initial information; (2) sender of information; (3) transfer of information; and (4) receiver of information, with the transition between each creating potential for distortion and information loss: Wróblewski (1992), p. 149.
- 28.
Ibid.
- 29.
Wróblewski describes this as a process of ‘translation’ where meaning is given to the language and action used to convey information: Wróblewski (1992), p. 149.
- 30.
Frank (1948), pp. 924–5.
- 31.
Frank argues that what matters in the end is ‘what the court thinks about the facts’, as those actual events happened in the past and ‘do not walk into the court’: Frank (1949), p. 15. Elsewhere, Frank (1936) argued that ‘facts’ are ultimately ‘what the judge thinks they are’: Frank (1936), p. xviii.
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McIntyre, J. (2019). The Role and Assessment of the Factual Circumstances. In: The Judicial Function. Springer, Singapore. https://doi.org/10.1007/978-981-32-9115-7_8
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