Against ‘Legal Facts’

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.