The belief in a clear distinction between questions of law and questions of fact and the view that juries generally should decide only questions of fact are of relatively recent vintage. See Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, 28-30, 165-174 (1975); Horwitz, The Transformation of American Law, 1780-1860 (1977). See also Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. Pa. L. Rev. 829, 835 (1980) ("In such a world [of the late eighteenth century] law is a fact like any other: all that is necessary for the resolution of a dispute is for intelligent and moral people, free from the temptations of corruption, to apply their minds to it in a reasonably diligent fashion"). On the distinction between law and fact in medieval England, see Arnold, Law and Fact in the Medieval Jury and Trial: Out of Sight, Out of Mind, 18 Am. J. Legal Hist. 267, 279-280 (1974) ("But for medieval people, especially those who found themselves on the bench or on the jury in a common-law court, the law simply was not regarded as consisting of external commands but of enforceable rights discoverable by logic and observation. These rights were not beyond the ken of lay people but were there for any and all to discover. `Law was once a fact,' Max Radin wrote, and a fact not too difficult to ascertain.' In such a world the distinction between law and fact in tort law is for the academic lawyer; and it would be four hundred years before one appeared"). If one is to judge the matter by academic literature, the distinction between law and fact was well established when the first edition of this Treatise appeared in 1904. See. e.g., Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890); Thayer, A Preliminary Treatise on Evidence 183262 (1898). (The distinction is still generally regarded as basic. See, e.g., Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1086 (1975).) Wigmore's theoretical perspective was drawn from English empiricism, and his definition of evidence reflects his participation in that intellectual tradition. Wigmore's definition of evidence closely resembles that of Jeremy Bentham (quoted in the text). And Bentham, like Wigmore, thought that there was a basic difference between law and fact. See, e.g., 1 Bentham, Rationale of Judicial Evidence 25 (Mill ed. 1827) ("Whatever be the decision by which a cause or suit at law is . . . terminated, — this decision has for its subject matter two constantly concomitant points or questions, — the point or question of law, and the point or question of fact. So far as regards the question of fact, the decision, in so far as it is just, depends upon and is governed by the evidence"). Wigmore recognized that there were problematic aspects to the distinction between law and fact. See the discussion in the text. Thayer had already discussed some of the difficulties with the distinction, showing that it was not always readily made. Thayer. Preliminary Treatise on Evidence 183-262 (1898); Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890). Wigmore nevertheless maintained that the distinction between law and fact is both basic and legitimate, notwithstanding any difficulties of interpretation and application. See discussion in text. The mysteries of the distinction between law and fact are deeper than Wigmore's discussion suggests. Much legal literature, in a "realistic" vein, as well as a great deal of literature on epistemology, has emphasized the "arbitrary" or "creative" elements present even in the most primitive factual judgments. There is also a large body of legal literature, again in a "realistic" vein, that has emphasized the extent to which the formulation of "legal" judgments, doctrines, principles, and rules is sensitive to (judicial) assessments of the "facts," both in general and in the particular case. These views suggest that all factual assessments involve a normative component; that all normative analysis (broadly understood) inextricably involves factual assessments; and that it is in principle not possible to draw a sharp line between the two types of analysis and decisionmaking. The distinction between law and fact seems designed to differentiate those types of questions as to which the submission of evidence is not useful or proper. The view that it is appropriate and useful to receive evidence on questions of fact and not on questions of law seems to rest on the premise that questions of fact relate to questions concerning the existence or nonexistence of phenomena and questions of law involve determinations of policy as to which the admission of evidence is beside the point since such questions of social policy do not involve questions concerning the existence of some phenomenon or event. Today, however, it seems less clear that the value of evidence as to disputed questions may be assessed on this basis. Thus, for example, it is a familiar thesis in many branches of law, particularly in torts and in contracts, that many questions of "fact" submitted to juries for adjudication in reality present and involve questions of policy and of "law." Thus, a jury may be asked (by law) to decide whether a person exercised "reasonable prudence," and the matter in question may be treated as a factual question for purposes of allocating decisionmaking responsibilities between judge and jury. However, the characterization of a matter as factual for these purposes does not inexorably lead to the conclusion that the submission of evidence with respect to that matter is inappropriate or unhelpful. Thus, courts often do assert that the jury may or should consider an issue such as reasonable prudence or ordinary care in the light of ordinary or customary practice, and it then may become entirely appropriate to submit evidence at trial to inform the jury as to ordinary or customary practice. Cf. Treatise §2552 infra. Of course it is arguable that any such question regarding reasonable prudence as to which ordinary practice and custom are pertinent may and should be analytically decomposed into questions of policy or law and questions of fact. By this view, evidence as to the existence of customary practices is pertinent not to the problem of choosing or formulating the appropriate standard of behavior but to the question of whether a standard that incorporates reference to customary practice is or is not applicable to the factual circumstances of the situation. On this view, any other question of "fact" as signed to the jury for decision may be decomposed in like fashion into normative or legal decisions, on the one hand, and factual assessments, on the other, and it may then be clearly seen that the evidence submitted to the jury is pertinent only to the truly factual component of the "question of fact" submitted to the jury. While we cannot assess the latter response at any length here, we believe it is insufficient and simplistic. Even if we make the problematic assumption that issues such as "reasonableness" can be dissected into purely factual and purely normative (policymaking: "lawmaking") components, the ability to perform this analytical surgery does not demonstrate that evidence may not and should not be received with respect to the legal or normative component of any such mixed issue of law and fact. It is simply gratuitous to assume that information supplied by evidence cannot be useful for a decisionmaker contemplating a question of law or policy. (Cf. related discussion of this problem in § 4c infra in relation to administrative proceedings.) It might be said, in rejoinder, that the concept of evidence, by its nature, involves the use of the existence of one state of affairs (evidence) to demonstrate the existence or nonexistence of some other state of affairs in the world, some fact in issue (cf. the common understanding of relevancy, § 87 infra), but, whatever the merits of this view, it hardly demonstrates that information in the form of evidentiary submissions (as by a witness testifying) should not be given to the jury (or judge) when it is required to make a decision of policy. Furthermore, the premise of the rejoinder is probably incorrect. In many cases, investigations designed to resolve what are generally regarded as questions of fact aim not so much to determine the existence or nonexistence of some empirical phenomenon as to determine what sort of characterization of an empirical state of affairs is proper. Thus, for example, the existence of certain physical events involved in a controversy — the physical location of various persons or the uttering of certain sounds by various persons — may seem clear enough, and the question may then be what sort of intent one of the actors in the situation entertained. Not infrequently, as in contract cases, it will be appropriate and necessary to receive evidence (such as customary practice) not so much for the purpose of determining the existence of a particular thing (e.g., the "existence" of intent of a certain sort) but to determine, on the basis of evidence, what sort of meaning or significance should be ascribed to an actor, given the existence of various physical events that may not be in dispute. (The best example of this phenomenon may be the defense of insanity in a criminal prosecution. It is now generally said that defining insanity involves neither a scientific question nor a simple question of fact but requires that the jury determine, in the light of standards of fairness and culpability, whether the defendant may be fairly characterized as "insane." Yet, of course, we expect the jury to listen to expert psychiatric testimony to assist it in deciding what criteria to use in deciding to characterize a defendant's state of mind and not solely for the purpose of deciding whether facts do or do not exist that have a bearing on the standards of characterization it has decided to use. Of course, as this example of the insanity defense illustrates, it is often unclear whether the submission of evidence to the jury is designed to facilitate its description of events or, instead, its ascription of meaning to events; perhaps in a majority of investigations concerning matters such as intention the two are intermingled in some fashion.) To talk about factual investigations as though they involve only questions concerning the existence or nonexistence of some phenomenon or event may obscure the fact that we often answer the question, What happened? only by deciding how to characterize some events that are known to us. (An analogous thesis is the now-familiar claim in philosophy of science that facts are theory-dependent.) In short, in many cases a reasonably accurate description of what (probably) happened cannot be given unless the observer evaluates the significance of various events known to him (or that he assumes to be true); frequently — if not always — a factual investigation requires not only a determination of whether certain physical events occurred but also a determination of how such events should be interpreted or pieced together in order to answer adequately the question, What happened? The element of characterization or interpretation (or, if you prefer, ascription) present in factual investigations seems most prominent when factual questions relating to human intentions, purposes, motivations, and aims are raised. Cf. Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 (1975) (making a distinction between "external facts," such as the speed of a car, and "internal facts," such as knowledge, and tentatively suggesting that the process of proof may differ in the two cases even if both types of matters raise "factual" questions in some sense; however, interestingly enough, Damaska's discussion of factfinding precision is limited to proof of so-called external facts). It is arguable that a basic distinction exists between something like "natural phenomena," on the one hand, and "cultural and social phenomena," on the other hand, and that there is a corresponding distinction in the manner in which these two types of phenomena are investigated. Some writers have argued that a distinctive epistemology attaches to the understanding of social relations and interpersonal "events," apparently because of the fact that social relations, unlike natural phenomena, are constituted in part by what might be called interpersonal consciousness (or, if you prefer, symbolic interaction). The existence of a social event — a greeting, a leave-taking, or what have you — may be determined only if one knows the rules by which the actors attach significance or meaning to various events, and arguably, the methods we use to attempt to determine the significance and meaning attached by the actors to their actions may differ essentially from the methods we normally use to determine whether a given physical or natural event, not involving human intentions, occurred or did not occur. See generally Unger, Knowledge and Politics (1975); Habermas, Knowledge and Human Interests (Shapiro trans. 1971). (Of course in some cases, as with the more extreme forms of the objective theory of contracts, we purport not to concern ourselves with the actual intentions of the particular actors in the situation but rather engage in a process more akin to ascription than description. However, even here description is involved since we must be able to say and understand, for example, what people in the situation usually understand and intend — unless we want to make all talk about matters such as intent talk about a "fiction" because we do not believe that any things such as intent really exist in any sense.) It is pertinent to observe here that any analytical maneuvering that does show (contrary to our expectations) that there is indeed a clear distinction between "fact" and "law" (between factual and normative decisionmaking) does not necessarily show that the assignment of decisionmaking responsibilities to the jury concerning a matter such as "reasonableness" is therefore necessarily illegitimate, since in fact such matters and questions historically have frequently been submitted to the jury (see this note supra); it is also arguable on the merits that it is sometimes appropriate to assign "policy-making" responsibilities to the jury. From the perspective of evidentiary theory, any assignment of policymaking functions to the jury may seem anomalous and thus there may emerge an inclination to analyze putative "questions of fact" more precisely so that the policymaking aspects of any seeming question of fact may be reserved for decision by the judge, leaving only the factual components for resolution by the jury. However, this sort of attempt to discriminate more carefully between questions of fact and questions of law may well result in an illegitimate usurpation and impairment of the decisionmaking authority historically assigned to the jury.
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