provisional concepts and definitions of fact

GEOFFREY MARSHALL

PROVISIONAL CONCEPTS AND DEFINITIONS OF FACT

(Accepted February 26, 1999)

ABSTRACT. The paper explains and differentiates the concept of ‘fact’ in thelegal setting. Fact and evidence, fact/falsity distinguished; fact and law considered– a real difference or a pragmatic device? Questions of fact and degree considered,in themselves and in the context of jury trial and of appeals. Primary fact, factualinferences from primary fact, questions of classification of fact are considered.Whether inference is supported by evidence, and whether classification is correctmay be questions of law. Issues of fact and opinion, fact and comment, relative tofreedom of speech, defamation etc: no clear distinction available. Legal problemsconcerning absence of workable distinctions.

KEY WORDS: fact, evidence, truth, statement, degree (question of), jury, appeal,primary fact, inference, classification, opinion, comment

If we were called upon to say what in general a fact is we shouldbe in some difficulty. We know a number of things that facts arenot or that are not facts. We often contrast facts with falsehoods orfictions, but also with conjectures or speculations or opinions; andin some kinds of academic discussion facts may be contrasted withevaluations or norms or prescriptions or theories. Facts are not thesame as events or situations or states of affairs. Those take place atparticular times and places but facts do not. Some facts are negativeor hypothetical. That there is no king of France is a fact but it is notlocated in France. Facts exist but do not occur.

Facts are also not propositions or statements or assertions.Neither, it could be argued, are they simply what statements, whentrue, state.1 This, admittedly, would be consistent with expressionssuch as “stating the facts”. But that phrase could be consideredas being more properly a way of referring to the making of trueassertions or statements about the facts. A fact might more aptly be

1 An issue debated by Professor P.F. Strawson and J.L. Austin. See StrawsonProc. of the Australian Soc.Supp. Vol. XXIV 135 and Austin “Unfair to Facts” inPhilosophical PapersOUP (1970) at p. 154 ff.

Law and Philosophy18: 447–460, 1999.© 1999Kluwer Academic Publishers. Printed in the Netherlands.

448 GEOFFREY MARSHALL

considered to be that in virtue of which a statement is true and notsimply a true statement. In an expression such as “the fact that thisis disgraceful” the expression or proposition introduced by “that” isnot what is disgraceful. It is whatever makes it true to say “This isdisgraceful” that is disgraceful. In that sense facts are in the worldand not just in language in the way that phrases or sentences are inthe language.

What kinds of facts there are in the world is a matter on whichtheorists – including legal theorists – may differ. For some positivistlegal theorists the facts to be found in the world derive only fromthe existence of observable objects, events or processes, togetherperhaps with verifiable causal relationships. InLaw as Fact, theSwedish realist Karl Olivecrona claimed only to deal with “theobservable facts of positive law”. On this view, concepts such asrights and obligations cannot be found in the world of facts, eventsand causal relationships, and are treated as imaginary or fictionalentities. However, in his later work,2 Olivecrona moved towardsthe idea that such so called non-factual concepts, along with titlessuch as “King” or “President”, were comprehensible only within aparticular framework or convention of behaviour – a view havingobvious affinities with the idea that there are socially constructed or“institutional” facts.3

FACTS IN THE LAW

Within the law as well as in speaking of law and legal systems ingeneral, there are problems about what, for legal purposes, consti-tutes a fact, or a factual issue, or a factual conclusion, or a factualassertion. As with other many-faced concepts, that of fact is oftenilluminated by a consideration of the various things with which itmay be contrasted. In the law of evidence, which addresses the issuehow facts are for legal purposes to be adduced, tested and proved,the implicit concern is with the contrast between fact and falsity.In a variety of other legal contexts (particularly the determinationof the scope of appellate jurisdiction, jury trial, judicial review and

2 SeeLaw as Fact2nd edn. Stevens (1971).3 A term popularised by John Searle. SeeThe Construction of Social Reality.

Penguin (1995) Chap. 2.

PROVISIONAL CONCEPTS AND DEFINITIONS OF FACT 449

statutory interpretation) courts are faced with a conceptual issue ofsome complexity – namely, what is to count as an issue or questionof fact. Here the contrast drawn is with questions of law. In yetother contexts (for example, misrepresentation, defamation and freespeech jurisprudence) it is necessary to differentiate questions offact from assertions of opinion. The contrasting of fact with bothfalsity and opinion is consistent with the understanding of mattersof fact outside the law. The need to create a distinction between factand law moves away from non-legal usage, however. Outside thelaw one might say that if a man is rightly held to have committedtheft it is a fact that he is guilty of theft as much as it is a fact that heis six feet in height.

FACT AND LAW

In common law jurisdictions two allegations have commonly beenmade. One is that distinctions between fact and law are judiciallymanipulated for the pragmatic purpose of determining who shoulddecide the questions at issue. What is thought suitable for determi-nation by an appellate or reviewing body is called a question of law,whilst what is thought best left for decision by an inferior court,tribunal, jury or administrative body is called a question of fact.

The other assertion is that there is in any event no clear distinc-tion to be made between the two kinds of question. Though oftenmade together, or at least in close proximity, these are independentassertions of which either, neither, or both could be true. They arecommonly linked because in some discussions the view that it isimpossible satisfactorily to distinguish fact from law is taken to bea ground for advocating an openly pragmatic or policy approach.This is by no means a new philosophy, but one that probably datesfrom, and received an impetus from, the rise of administrative adju-dication in Britain and the United States, posing new problems ofjudicial review in the early years of the century. John Dickinson,in his classic work on administrative justice, wrote in 1927 thatquestions of law and fact were “not two mutually exclusivekindsofquestion based upon a difference of subject matter. Matters of lawgrow downwards into roots of fact and matters of fact reach upwardwithout a break into matters of law. The knife of policy alone affects


an artificial cleavage at the point where the court chooses to draw theline between public interest and private right”.4

Apart from the fact that judicial instinct about the properboundary between public interest and private right would not help todifferentiate fact and law where administrative adjudication involvesthe conflicting interests of private parties, there are some queriesthat might be raised about Dickinson’s radical metaphor. It allegesthat questions of law and questions of fact are not of different kindsand cannot in principle be distinguished, because roots from bothreach up and down to each other. But it hardly follows, if we pursuethe metaphor, that what goes on at the upper and lower extremesare indistinguishable or cannot be said to be essentially differentkinds of processes. The differences between many states of affairsor related concepts lie on a continuum. Night merges into day. Butdarkness and light are not for that reason indistinguishable states.Nor does the absence of a unique location for the dividing linemean that it can be placed just anywhere. This is true of manyquestions that involve matters of degree, or to which there is arange of possible answers, or which require the clarification of theboundaries of vague concepts.

Lawyers have not, in general, refrained from characterising ques-tions of law and fact as different in kind, but in one respect thecharacterisation contrasts with non-legal usage. Outside the law, aquestion of fact might be thought to be one to which there is asingle definite and discoverable answer, but for some legal purposesquestions of fact have been alleged to exist where the answers to aquestion are thought to be indefinite in the sense of lying along somesort of spectrum, or (which is not quite the same thing) as beingquestions to which a variety of answers might be given – as whenan imprecise concept has to be applied to a range of unpredictablecircumstances that, in different cases, may be in some respects thesame and in other respects different.

4 Administrative Justice and the Supremacy of Law, Harvard University Press(1927) at p. 55.


FACTS, CONCLUSIONS AND CLASSIFICATIONS

The following categories might be distinguished:

1. Primary or simple or “brute” phenomena – once described byLord Denning as “facts which are observed by witnesses andproved by oral testimony, or facts proved by the production ofthe thing itself, such as original documents”.5

2. Inferences or conclusions drawn from primary facts by a processof reasoning or analysis (involving, for example, conclusions asto causes or the relation of one event to another).

3. Classification. The bringing of things, actions or events withinthe scope of a general description, rule or concept, whetherlinguistic or legal.

Prima facieit would seem reasonable to suppose that categories1 and 2 involve issues of fact and category 3 issues of law. Theexpression “raising” or “involving” issues of fact or law is, however,ambiguous and it is necessary to distinguish between two questions:first, whether the making of a decision is itself to be described asfactual or legal in character; and, secondly, whether a question oflaw can arise from its making, and in that sense raise or involvean issue of law. For example, issues of law may be involved incategory 2 and even in category 1 decisions, even if the decisionsthemselves are characterised as factual. In relation to inferences orconclusions from primary facts, a question of law may arise as towhether the inferences can reasonably be drawn from the evidence.6

As to simple or primary facts themselves, no statement is so simpleor “brute” that it may not embody an inferential or classificatoryproblem within it. Whether this will matter and raise an issue oflaw will depend upon the circumstances and purposes for whichthe statement is being adduced. For most purposes, the statement“Smith was standing in the road” may be unproblematical and canbe regarded as stating a simple or brute fact. For other purposesit may be necessary to decide whether Smith’s identity has been

5 British Launderers Associationv. Hendon Rating Authority[1949] 1 K.B.462 at 471.

6 “The adequacy of the evidence adduced to support a finding of fact is aquestion of law.” Louis Jaff́e, “Judicial Review: Question of Fact” 69HarvardLaw Review1020.


correctly inferred from the available evidence; whether what he wasdoing was really “standing” (as distinct, perhaps, from crouching);and whether the place at which he was observed could properly beclassified as a road, as distinct perhaps from a private place or afootpath.

Disputes about the character of what are themselves to be treatedas factual issues have related mainly to category 3. Classificationcovers a variety of activities. They might include the bringing ofparticular things or circumstances under a general rule, or the appli-cation of a standard to particular behaviour, or the application ofa general concept of common law or a statutory term or defini-tion to particular instances. Whether and for what purposes suchquestions of application should be treated as raising issues of fact –appropriate, for example, to jury decision – is an old wrangle. Onewrangler was Mr. Justice Holmes. Whether conduct was negligentor not, he maintained, was a question of law. “From saying that wewill leave a question to the jury to saying that it is a question of factis but a step (but) every time that a judge declines to rule whethercertain conduct is negligent or not he avows his inability to statethe law.” The meaning of leaving nice questions to the jury was, hethought, that “while if a question of law is pretty clear we can decideit . . . if it is difficult it can be better decided by twelve men taken atrandom from the street”.7

Holmes was rightly sceptical of the idea that where the appli-cation of a general or vague term resulted in differences of degreeas between a number of possible answers, no answer could in prin-ciple be given. He remarked that “when he has discovered that adifference is a difference of degree, that distinguished extremes havebetween them a penumbra in which one gradually shades into theother, a tyro thinks to puzzle you by asking where you are goingto draw the line . . . But the theory of the law is that such linesexist because the theory of the law as to any possible conduct isthat it is either lawful or unlawful”.8 However, many modern casesseem to involve the idea that where the answer to a classificatory orapplicatory question can be said to involve matters of degree, or tolie along a spectrum of possible answers, it should be treated as an

7 Collected Legal Papers, Harcourt, Brace and Howe (1920) at p. 233.8 Ibid.


issue of fact, not law. InBracegirdlev. Oxley it was said that “thequestion whether a speed is dangerous is a question of degree anda question of degree is a conclusion of fact”.9 The main contextin which such cases have occurred are those involving statutoryappeals on points of law from the decisions of inferior tribunalsand adjudicatory bodies, and applications for judicial review ofbodies coming within the scope of public law remedies. In recenttimes the decision-making bodies have been tribunals or agenciesdealing with questions of taxation,10 employment, housing, socialservices and immigration. Since statutory appeals are often confinedto points of law, and errors of law may be held to go to the jurisdic-tion of the deciding body, the question of what is to count as an issueof law and an issue of fact has an important impact on the scopeof appellate review and supervisory jurisdiction.11 Intervention bysuperior courts will be less where it can be held that questionsof classification and application of statutory rules or standards orconcepts are issues of a factual character (though intervention is notentirely precluded by such a finding, since it may be held that thefacts to be found by the deciding body are “precedent” or “jurisdic-tional” facts12). It has often been said that classificatory questionsturning on matters of degree should be treated as factual. “Cases inwhich the facts admit a determination either way can be described asquestions of degree and therefore as questions of fact”.13 But whatis meant by cases that “admit a determination either way”?

FACT AND DEGREE

The idea of questions of degree, or “fact and degree”, deserves someexamination. Conditions that involve size or quantity are some-times said to involve questions of degree. Examples might be terms

9 [1947] K.B. 349 at 358; c.f.Edwardsv. Bairstow[1956] A.C. 14 at 33.10 See A. Farnsworth, “ ‘Fact’ or ‘Law’ in Cases Stated under the Income Tax

Acts” 62Law Quarterly Review248 (1946).11 See J. Beatson, “The Scope of Judicial Review for Error of Law” (1984) 4

Oxford Journal of Legal Studies22.12 White and Collinsv. Minister of Health [1938] 2 K.B. 838; andR. v.

Secretary of State for the Home Department ex p. Kawaja[1984] A.C.74.13 IRCv. Scottish and Newcastle Breweries Ltd.[1982] 1 W.L.R. 322 at 327.


like “substantial”, “cold”, “bald” or “fast”. Whether something canproperly be called cold or fast involves consideration of a range ofpotential answers or contiguous possibilities that may be thought ofas lying along a spectrum or continuum. Another form of vaguenessor indeterminacy results from the existence of disputed multiplecriteria for the application of a general term or phrase. Manyterms in statutes – for example, “self-employment”, or “multiple-occupancy”, or “income” – may need to be defined by referenceto a number of definitional characteristics, the exact number of suchcharacteristics being indefinite and no particular characteristic beingin all cases necessary and sufficient. The possible answers in a caseof this kind do not exactly lie along any kind of line or continuum,but are alternative possibilities, varying perhaps in degrees of plausi-bility (as does the placing of a line along a continuum). The mean-ings of the term “accommodation”, for example, have been said torange “from the obvious, to the debatable, to the just conceivable”.14

It could be said that the application of all general terms (andindeed some, on the face of it, specific-looking terms) is in this sensea matter of degree or alternative possibilities that will range from themore obvious to the more marginally possible applications of theterm. However, it would be odd to suppose that a question of law isposed only when there is no range of possible or plausible alternativesenses or applications of a statutory term. Nevertheless, some judgesand commentators appear to suggest something of the kind. It hasbeen proposed that “a question of application is a question of lawwhen the law requires one answer to the question of application” andthe courts “should hold that a question of application is a questionof fact when it is capable of decision either way”.15 “Capable ofdecision either way” and “requiring an answer” are not very clear.Except in a very simple or obvious case, which most cases that go toappeal are not, every case admits the possibility of various answersbut also requires the selection of a single answer.

14 Pulhoferv. Hillingdon L.B.C.[1986] A.C. 484 at 517–18.15 Timothy Endicott, “Questions of Law” 114Law Quarterly Review292 at

318–21 cf. E. Mureinik, “The Application of Rules; Law or Fact” (1982) 98LawQuarterly Review587.


FACT AND INTERPRETATION

Perhaps because most general terms in statutes can have a disputedrange of application, with a penumbra or possible continuum ofmeanings, it has been said that the meaning to be attached toordinary words in statutes raises an issue of fact not law. The clearestexpression of the meaning of words as fact doctrine was inBrutusv. Cozens, in which it was said that “The meaning of an ordinaryword of the English language is not a question of law”16 but a ques-tion of fact. Clearly the meaning of this is not that it is an issueestablished by sworn testimony. But if the suggestion is that it isa question of application with alternative applicatory possibilities,many of the possibilities may, as a matter of English usage, beincorrect. The English language is, as a matter of fact, constantlyused incorrectly. The terms “continuously” and “continually” are,for example, commonly misapplied, but in 1998 the High Courtdecided that the proper application of the word “continually” wasin the sense of a process or event that regularly recurred, rather thanone which went on with no intervening intervals.17 The matter offact that concerns the courts in statutory interpretation is the correctapplication of language. This points to an ambiguity in this contextin the contrast between “question of fact” and “question of law”.By definition, a questionaboutfacts, such as linguistic usage, is afactual issue and a statement of the facts is not a statement of thelaw. But if stating the facts correctly is a legal requirement, then thequestion whether they are correctly stated is a question of law.18

This illustrates the ambiguity already alluded to in the questionwhether a decision may “involve” a question of law (i.e. as betweenthe character of the decision made and the nature of the issues thatmay arise from its making).

16 [1973] A.C. 854 at 861; c.f.R. v. Radio Authority ex p. Bull[1997] 2 AllE.R. 561.

17 Westminster City Councilv. Moran [1998] 7 C.L. 441.18 See e.g.Shahv. Barnet L.B.C.[1983] 2 A.C. 309 at 341.


FACT AND OPINION

In addition to the procedural concerns of appellate jurisdiction andjudicial review, there are a number of substantive civil and crim-inal contexts in which it is necessary to determine what constitutesa matter of fact and what statements are statements as to mattersof fact. In the tort of deceit there must be some misstatement offact or factual omission which renders a statement effectively false.The criminal offence of deception involves deception by wordsor conduct as to a matter of fact or law.19 In the English law ofdefamation the requirement that a defendant justify his allegedlydefamatory statements turns upon whether they relate to matters offact. Here fact is contrasted with comment expressing opinion.

The existence of these offences and causes of action in somesense reflects a recognition that the law’s general policy ofpermitting free expression is not inconsistent with restricting theexpression of views that relate to matters of fact where factualmisstatements are deemed damaging to others or to the generalinterest. Yet in all these cases there is little exploration of the bound-aries that impliedly separate fact and non-fact for the purposes inhand. Mill’s classical exposition of free expression principles inOnLiberty seems indeed to ignore the distinction. He says that thereshould be the fullest liberty of professing and discussing as a matterof ethical conviction anydoctrine, however immoral. The thrust ofthe argument is that it is debate or discussion or advocacy that ispermitted by the free speech principle (as contrasted, for examplewith incitement or instigation to crime). But “doctrine” is an unclearterm. It implies some general set of beliefs, but not necessarilybeliefs of a non-factual kind. Marxist doctrine, for example, is full ofallegations as to matters of fact (“The history of all hitherto existingsocieties is a history of class struggle”). Mill speaks also of thewrongfulness of silencing opinion. But this is equally unclear. “Ifall mankind minus one were of one opinion . . . mankind would be

19 Theft Act, 1978 s.15(4) see D. W. Elliot “Law and Fact in Theft Act cases”[1976]Criminal Law Review707. The Trade Descriptions Act, 1968 by contrastcreates the offence of making a false statement without specifying that such state-ments must be as to a matter of fact. As to the factual character of statementsabout the future and as to present and future intentions seeR.v. Sunair HolidaysLtd. [1973] 1 W.L.R. 1105; andBritish Airwaysv. Taylor [1976] 1 W.L.R. 13.


no more justified in silencing that one person than he, if he had thepower, would be justified in silencing mankind.” There is a strongimplication that this sentiment refers to views of all kinds, includingopinions or assertions as to matters of fact. Indeed, opinions areoften about facts or alleged facts. So is discussion and debate andso are beliefs. Mill’s aversion to silencing minority views certainlysounds as if it is intended to protect factual beliefs, or opinionsas to matters of fact held by minorities, against suppression in theinterest of majority or official versions of the truth. So a believerin the flatness of the earth might not be forbidden to proclaim hisbelief without a violation of the non-assumption of infallibility prin-ciple. Nowhere does Mill say that that principle is not applicable tofactual beliefs. Nor does he accept the view that such views mightbe prohibited when dangerous or harmful, since the noxiousnessor utility of a belief is, he says, as much a matter of opinion asits truth, and to draw a distinction between harmless and harmfulbeliefs for purposes of suppression is simply to shift the assumptionof infallibility from one point to another. He also speaks of opinionsas being capable of truth and falsity and denies the right of societyto suppress opinions which it regards as false or pernicious.

Elsewhere, however, (in an essay on the law of libel and libertyof the press) he expressed the view that “the case of facts and thatof opinion are not precisely similar”. Whilst false opinions mustbe tolerated, there is no corresponding reason for permitting thepublication of false statements of fact. The truth or falsehood of analleged fact is a matter not of opinion but of evidence”.20 At thispoint Mill has been inveighing against the right of a governmentto choose a religion for its subjects. Yet religious doctrines containmany allegations as to matters of fact. The existence and character-istics of the Deity and his relationships with mankind are certainlyasserted as matters of fact. Mill does not anywhere specify the classof matters that can be established by evidence. The attempt to tiefactual matters to those that can be established by testimony, at leastas to primary facts, is obviously unsatisfactory. What is the characterof an assertion such as “the proletariat is the only revolutionaryclass”? And is an opinion on the point an opinion about a matterof fact, or an opinion about a matter of opinion? Indeed, one might

20 “Law of Libel and Liberty of the Press”,Edinburgh Review111 1825.


well ask whether the fact/opinion distinction is a proper contrast atall. To opine or to express an opinion is simply to express a view. Itdoes not in itself indicate that the view is embodied in any particularform of assertion. So it may apply as aptly to factual matters as tomatters of assessment, inference, classification or evaluation.

Modern liberal free speech theory, it may be noted, has acceptedthe view (probably inconsistently with Mill’s thesis inOn Liberty)that, in matters of trade and commerce at least, speech or writingmay be penalised on the ground that it is false or misleading. Falseor misleading claims or assertions need not, of course, relate solelyto matters of fact, certainly not in the primary fact sense, or inany sense, since it is possible to be misled or damaged by falseexpressions of an inferential or classificatory or evaluative kind. Butsometimes torts or criminal offences require falsity or deception tobe of a factual character.

Defamation law has been singularly unsuccessful in stipulatingthe nature of those factual assertions that require to be justifiedas distinct from claims or assertions that amount to comment oropinion – such statements of opinion being protected if they arefair comment.21 Comment, it should be added, bears a restrictivecharacter in this context since the opinion which it expresses must behonestly held,22, not be immoderately framed23 and must relate toa matter of public interest.24 Commenting, however, like expressingan opinion, is not a suitable term to be contrasted with stating a fact,since commenting, like opining, can be embodied in many differentkinds of assertion. Nevertheless, the difference between commentand factual statement is said (unhelpfully) to be “a matter of inter-pretation in the light of all the circumstances known to those towhom the words are published, in particular the context in whichthe words appear”.25 The difference is plainly not that betweensimple description and evaluation. To say that a man’s conduct

21 Mangenav. Wright [1909] 2K.B. 958;Grechv. Odhams Press[1958] 2 K.B.275. See alsoKemsleyv. Foot [1952] A.C. 348 and Chap. 6 of theReport of theCommittee on DefamationCMnd.5909 (1972).

22 McQuirev. Western Morning News[1903] 2 K.B. 100 at 10923 Turnerv. MGM [1950] 1 All E.R. 449 at 461.24 London Artistsv. Littler [1969] 2 Q.B. 375.25 Gatley on Libel and Slander8th edn. P. Lewis, Sweet and Maxwell (1981)

at p. 699.


is disgraceful is regarded as an allegation as to fact. However, tosay that he has murdered his father and therefore is a disgrace tohumanity is treated as comment or opinion, provided that the factrelied upon is correctly stated.26 For this purpose, inferences andconclusions are not treated as matters of fact if validly based onimplicit or stated facts. The same would be true presumably ofallegations as to causal relationships between one event and another.Unfortunately, there is not to be found in the cases any clear generaldefinition of what is to count as an assertion of fact. The difficultyof the supposed distinction between fact and opinion is reflected inthe fact that in England it is said to be a question for the jury todecide whether words are an expression of opinion.27 However, it isfor the judge to instruct the jury as to whether the words in questionare capable of being an expression of opinion.28 Juries must be hardput to it to understand what they are being told when instructed thatwords are capable of being an expression of opinion, but neverthe-less may not be. They may wonder whether there is anything otherthan an opinion that is capable of being an opinion.

SUMMARY

1. Inside the law conceptual questions about facts relate to thenature of facts, factual questions, factual conclusions and factualstatements.

2. Questions arise in two major contexts: (a) Appellate jurisdictionand judicial review; jury trial; precedent and statutory inter-pretation; and (b) Delimitation of offences and causes of actionrelated to speech and writing (deception, misrepresentation anddefamation, together with the implementation of free speechimmunities).

3. Under (a) the conceptual issue is the distinction between ques-tions of fact and issues of law. Under (b) the contested concep-tual distinction is that between questions or statements of factand statements that express opinion or comment.

26 Cooperv. Lawson8 A.&E. 746 at 752.27 Aga Khanv. Times Co.[1924] 1K.B. 675 at 680.28 Sutherlandv. Stopes[1925] A.C. 47;London Artistsv. Littler [1969] Q.B.

375 (C.A.).


4. Three types of decisions may be distinguished: those that relateto primary facts or phenomena proved by testimony or physicalevidence; inferences and conclusions drawn from primary facts;and classificatory decisions.

5. In the context of appellate jurisdiction and judicial review,inferences from primary facts and classificatory questions havesometimes been treated by superior courts as factual in character(and therefore non-reviewable) and sometimes as questions oflaw. In statutory interpretation the meaning of ordinary wordshas been said to be a matter of fact not law.

6. The question whether a decision raises or involves a question oflaw has two senses: First, whether the making of the decisionis itself a decision as to fact or law; and, secondly, whether aquestion of law may arise out of the making of the decision. Adecision about facts may be a factual decision, but may give riseto a question of law if the law requires the facts to be correctlystated or based on sufficient evidence.

7. In the context of offences and litigation about speech andwriting, no general characterisation is to be found in the cases ofwhat constitutes an assertion of fact as distinct from a commentor expression of opinion. The making of an assertion as to amatter of fact cannot properly or coherently be contrasted withcommenting or expressing an opinion. An appropriate distinc-tion might be framed in terms of a contrast between, on theone hand, assertions of fact and, on the other, inferences fromand classifications or assessments of facts (providing that theinferences or assessments had a sufficient basis in relation to theprimary facts). The existing uncertainty imports confusion intoexisting law and future litigation about freedom of expression.

The Queen’s CollegeOxford OX1 4AWEngland, U.K.(E-mail: [email protected])

provisional concepts and definitions of fact

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