laws, facts, and values || provisional concepts and definitions of fact

Provisional Concepts and Definitions of FactAuthor(s): Geoffrey MarshallSource: Law and Philosophy, Vol. 18, No. 5, Laws, Facts, and Values (Sep., 1999), pp. 447-460Published by: SpringerStable URL: http://www.jstor.org/stable/3505139 .

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GEOFFREY MARSHALL

PROVISIONAL CONCEPTS AND DEFINITIONS OF FACT

(Accepted February 26, 1999)

ABSTRACT. The paper explains and differentiates the concept of 'fact' in the legal 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, factual inferences from primary fact, questions of classification of fact are considered. Whether inference is supported by evidence, and whether classification is correct may be questions of law. Issues of fact and opinion, fact and comment, relative to freedom of speech, defamation etc: no clear distinction available. Legal problems concerning 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 should be in some difficulty. We know a number of things that facts are not or that are not facts. We often contrast facts with falsehoods or fictions, but also with conjectures or speculations or opinions; and in some kinds of academic discussion facts may be contrasted with evaluations or norms or prescriptions or theories. Facts are not the same as events or situations or states of affairs. Those take place at particular times and places but facts do not. Some facts are negative or hypothetical. That there is no king of France is a fact but it is not located 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, when true, state.1 This, admittedly, would be consistent with expressions such as "stating the facts". But that phrase could be considered as being more properly a way of referring to the making of true assertions 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 Strawson Proc. of the Australian Soc. Supp. Vol. XXIV 135 and Austin "Unfair to Facts" in Philosophical Papers OUP (1970) at p. 154 ff.

l Law and Philosophy 18: 447-460, 1999. 9T? 1999 Kluwer Academic Publishers. Printed in the Netherlands.



GEOFFREY MARSHALL

considered to be that in virtue of which a statement is true and not simply a true statement. In an expression such as "the fact that this is disgraceful" the expression or proposition introduced by "that" is not what is disgraceful. It is whatever makes it true to say "This is disgraceful" that is disgraceful. In that sense facts are in the world and not just in language in the way that phrases or sentences are in the language.

What kinds of facts there are in the world is a matter on which theorists - including legal theorists - may differ. For some positivist legal theorists the facts to be found in the world derive only from the existence of observable objects, events or processes, together perhaps with verifiable causal relationships. In Law as Fact, the Swedish realist Karl Olivecrona claimed only to deal with "the observable facts of positive law". On this view, concepts such as rights and obligations cannot be found in the world of facts, events and causal relationships, and are treated as imaginary or fictional entities. However, in his later work,2 Olivecrona moved towards the idea that such so called non-factual concepts, along with titles such as "King" or "President", were comprehensible only within a particular framework or convention of behaviour - a view having obvious 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 in general, there are problems about what, for legal purposes, constitutes a fact, or a factual issue, or a factual conclusion, or a factual assertion. As with other many-faced concepts, that of fact is often illuminated by a consideration of the various things with which it may be contrasted. In the law of evidence, which addresses the issue how 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 determination of the scope of appellate jurisdiction, jury trial, judicial review and

2 See Law as Fact 2nd edn. Stevens (1971). 3 A term popularised by John Searle. See The Construction of Social Reality.

Penguin (1995) Chap. 2.

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PROVISIONAL CONCEPTS AND DEFINITONS OF FACT

statutory interpretation) courts are faced with a conceptual issue of some complexity - namely, what is to count as an issue or question of fact. Here the contrast drawn is with questions of law. In yet other contexts (for example, misrepresentation, defamation and free speech jurisprudence) it is necessary to differentiate questions of fact from assertions of opinion. The contrasting of fact with both falsity and opinion is consistent with the understanding of matters of fact outside the law. The need to create a distinction between fact and law moves away from non-legal usage, however. Outside the law one might say that if a man is rightly held to have committed theft it is a fact that he is guilty of theft as much as it is a fact that he is six feet in height.

FACT AND LAW

In common law jurisdictions two allegations have commonly been made. One is that distinctions between fact and law are judicially manipulated for the pragmatic purpose of determining who should decide the questions at issue. What is thought suitable for determination 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 distinction to be made between the two kinds of question. Though often made together, or at least in close proximity, these are independent assertions of which either, neither, or both could be true. They are commonly linked because in some discussions the view that it is impossible satisfactorily to distinguish fact from law is taken to be a ground for advocating an openly pragmatic or policy approach. This is by no means a new philosophy, but one that probably dates from, and received an impetus from, the rise of administrative adjudication in Britain and the United States, posing new problems of judicial review in the early years of the century. John Dickinson, in his classic work on administrative justice, wrote in 1927 that questions of law and fact were "not two mutually exclusive kinds of question based upon a difference of subject matter. Matters of law grow downwards into roots of fact and matters of fact reach upward without a break into matters of law. The knife of policy alone affects

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GEOFFREY MARSHALL

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

Apart from the fact that judicial instinct about the proper boundary between public interest and private right would not help to differentiate fact and law where administrative adjudication involves the conflicting interests of private parties, there are some queries that might be raised about Dickinson's radical metaphor. It alleges that questions of law and questions of fact are not of different kinds and cannot in principle be distinguished, because roots from both reach up and down to each other. But it hardly follows, if we pursue the metaphor, that what goes on at the upper and lower extremes are indistinguishable or cannot be said to be essentially different kinds of processes. The differences between many states of affairs or related concepts lie on a continuum. Night merges into day. But darkness and light are not for that reason indistinguishable states. Nor does the absence of a unique location for the dividing line mean that it can be placed just anywhere. This is true of many questions that involve matters of degree, or to which there is a range of possible answers, or which require the clarification of the boundaries of vague concepts.

Lawyers have not, in general, refrained from characterising questions of law and fact as different in kind, but in one respect the characterisation contrasts with non-legal usage. Outside the law, a question of fact might be thought to be one to which there is a single definite and discoverable answer, but for some legal purposes questions of fact have been alleged to exist where the answers to a question are thought to be indefinite in the sense of lying along some sort of spectrum, or (which is not quite the same thing) as being questions to which a variety of answers might be given - as when an imprecise concept has to be applied to a range of unpredictable circumstances that, in different cases, may be in some respects the same and in other respects different.

4 Administrative Justice and the Supremacy of Law, Harvard University Press

(1927) at p. 55.

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FACTS, CONCLUSIONS AND CLASSIFICATIONS

The following categories might be distinguished:

1. Primary or simple or "brute" phenomena - once described by Lord Denning as "facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of the thing itself, such as original documents".5

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

3. Classification. The bringing of things, actions or events within the scope of a general description, rule or concept, whether linguistic or legal.

Prima facie it would seem reasonable to suppose that categories 1 and 2 involve issues of fact and category 3 issues of law. The expression "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 as factual or legal in character; and, secondly, whether a question of law can arise from its making, and in that sense raise or involve an issue of law. For example, issues of law may be involved in category 2 and even in category 1 decisions, even if the decisions themselves are characterised as factual. In relation to inferences or conclusions from primary facts, a question of law may arise as to whether the inferences can reasonably be drawn from the evidence.6 As to simple or primary facts themselves, no statement is so simple or "brute" that it may not embody an inferential or classificatory problem within it. Whether this will matter and raise an issue of law will depend upon the circumstances and purposes for which the statement is being adduced. For most purposes, the statement "Smith was standing in the road" may be unproblematical and can be regarded as stating a simple or brute fact. For other purposes it may be necessary to decide whether Smith's identity has been

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

6 "The adequacy of the evidence adduced to support a finding of fact is a question of law." Louis Jaff6, "Judicial Review: Question of Fact" 69 Harvard Law Review 1020.

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GEOFFREY MARSHALL

correctly inferred from the available evidence; whether what he was doing was really "standing" (as distinct, perhaps, from crouching); and whether the place at which he was observed could properly be classified as a road, as distinct perhaps from a private place or a footpath.

Disputes about the character of what are themselves to be treated as factual issues have related mainly to category 3. Classification covers a variety of activities. They might include the bringing of particular things or circumstances under a general rule, or the application of a standard to particular behaviour, or the application of a general concept of common law or a statutory term or definition to particular instances. Whether and for what purposes such questions of application should be treated as raising issues of fact -

appropriate, for example, to jury decision - is an old wrangle. One wrangler was Mr. Justice Holmes. Whether conduct was negligent or not, he maintained, was a question of law. "From saying that we will leave a question to the jury to saying that it is a question of fact is but a step (but) every time that a judge declines to rule whether certain conduct is negligent or not he avows his inability to state the law." The meaning of leaving nice questions to the jury was, he thought, that "while if a question of law is pretty clear we can decide it ... if it is difficult it can be better decided by twelve men taken at random from the street".7

Holmes was rightly sceptical of the idea that where the application of a general or vague term resulted in differences of degree as between a number of possible answers, no answer could in principle be given. He remarked that "when he has discovered that a difference is a difference of degree, that distinguished extremes have between them a penumbra in which one gradually shades into the other, a tyro thinks to puzzle you by asking where you are going to draw the line ... But the theory of the law is that such lines exist because the theory of the law as to any possible conduct is that it is either lawful or unlawful".8 However, many modem cases seem to involve the idea that where the answer to a classificatory or applicatory question can be said to involve matters of degree, or to lie 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.

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issue of fact, not law. In Bracegirdle v. Oxley it was said that "the question whether a speed is dangerous is a question of degree and a question of degree is a conclusion of fact".9 The main context in which such cases have occurred are those involving statutory appeals on points of law from the decisions of inferior tribunals and adjudicatory bodies, and applications for judicial review of bodies coming within the scope of public law remedies. In recent times the decision-making bodies have been tribunals or agencies dealing with questions of taxation,10 employment, housing, social services and immigration. Since statutory appeals are often confined to points of law, and errors of law may be held to go to the jurisdiction of the deciding body, the question of what is to count as an issue of law and an issue of fact has an important impact on the scope of appellate review and supervisory jurisdiction.1l Intervention by superior courts will be less where it can be held that questions of classification and application of statutory rules or standards or concepts are issues of a factual character (though intervention is not entirely precluded by such a finding, since it may be held that the facts to be found by the deciding body are "precedent" or "jurisdic- tional" facts12). It has often been said that classificatory questions turning on matters of degree should be treated as factual. "Cases in which the facts admit a determination either way can be described as questions of degree and therefore as questions of fact".13 But what is meant by cases that "admit a determination either way"?

FACT AND DEGREE

The idea of questions of degree, or "fact and degree", deserves some examination. Conditions that involve size or quantity are sometimes said to involve questions of degree. Examples might be terms

9 [1947] K.B. 349 at 358; c.f. Edwards v. Bairstow [1956] A.C. 14 at 33. 10 See A. Farnsworth, " 'Fact' or 'Law' in Cases Stated under the Income Tax

Acts" 62 Law Quarterly Review 248 (1946). 11 See J. Beatson, "The Scope of Judicial Review for Error of Law" (1984) 4

Oxford Journal of Legal Studies 22. 12 White and Collins v. Minister of Health [1938] 2 K.B. 838; and R. v.

Secretary of State for the Home Department ex p. Kawaja [1984] A.C.74. 13 IRC v. Scottish and Newcastle Breweries Ltd. [1982] 1 W.L.R. 322 at 327.

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like "substantial", "cold", "bald" or "fast". Whether something can properly be called cold or fast involves consideration of a range of potential answers or contiguous possibilities that may be thought of as lying along a spectrum or continuum. Another form of vagueness or indeterminacy results from the existence of disputed multiple criteria for the application of a general term or phrase. Many terms in statutes - for example, "self-employment", or "multiple- occupancy", or "income" - may need to be defined by reference to a number of definitional characteristics, the exact number of such characteristics being indefinite and no particular characteristic being in all cases necessary and sufficient. The possible answers in a case of 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 meanings of the term "accommodation", for example, have been said to range "from the obvious, to the debatable, to the just conceivable".14

It could be said that the application of all general terms (and indeed some, on the face of it, specific-looking terms) is in this sense a matter of degree or alternative possibilities that will range from the more obvious to the more marginally possible applications of the term. However, it would be odd to suppose that a question of law is posed only when there is no range of possible or plausible alternative senses or applications of a statutory term. Nevertheless, some judges and commentators appear to suggest something of the kind. It has been proposed that "a question of application is a question of law when the law requires one answer to the question of application" and the courts "should hold that a question of application is a question of fact when it is capable of decision either way".15 "Capable of decision either way" and "requiring an answer" are not very clear. Except in a very simple or obvious case, which most cases that go to appeal are not, every case admits the possibility of various answers but also requires the selection of a single answer.

14 Pulhofer v. Hillingdon L.B.C. [1986] A.C. 484 at 517-18. 15 Timothy Endicott, "Questions of Law" 114 Law Quarterly Review 292 at

318-21 cf. E. Mureinik, "The Application of Rules; Law or Fact" (1982) 98 Law Quarterly Review 587.

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FACT AND INTERPRETATION

Perhaps because most general terms in statutes can have a disputed range of application, with a penumbra or possible continuum of meanings, it has been said that the meaning to be attached to ordinary words in statutes raises an issue of fact not law. The clearest expression of the meaning of words as fact doctrine was in Brutus v. Cozens, in which it was said that "The meaning of an ordinary word of the English language is not a question of law"16 but a question of fact. Clearly the meaning of this is not that it is an issue established by sworn testimony. But if the suggestion is that it is a question of application with alternative applicatory possibilities, many of the possibilities may, as a matter of English usage, be incorrect. The English language is, as a matter of fact, constantly used incorrectly. The terms "continuously" and "continually" are, for example, commonly misapplied, but in 1998 the High Court decided that the proper application of the word "continually" was in the sense of a process or event that regularly recurred, rather than one which went on with no intervening intervals.17 The matter of fact that concerns the courts in statutory interpretation is the correct application of language. This points to an ambiguity in this context in the contrast between "question of fact" and "question of law". By definition, a question about facts, such as linguistic usage, is a factual issue and a statement of the facts is not a statement of the law. But if stating the facts correctly is a legal requirement, then the question whether they are correctly stated is a question of law.18 This illustrates the ambiguity already alluded to in the question whether a decision may "involve" a question of law (i.e. as between the character of the decision made and the nature of the issues that may arise from its making).

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

17 Westminster City Council v. Moran [1998] 7 C.L. 441. 18 See e.g. Shah v. Baret L.B.C. [1983] 2 A.C. 309 at 341.

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FACT AND OPINION

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

The existence of these offences and causes of action in some sense reflects a recognition that the law's general policy of permitting free expression is not inconsistent with restricting the expression of views that relate to matters of fact where factual misstatements are deemed damaging to others or to the general interest. Yet in all these cases there is little exploration of the boundaries that impliedly separate fact and non-fact for the purposes in hand. Mill's classical exposition of free expression principles in On Liberty seems indeed to ignore the distinction. He says that there should be the fullest liberty of professing and discussing as a matter of ethical conviction any doctrine, however immoral. The thrust of the argument is that it is debate or discussion or advocacy that is permitted by the free speech principle (as contrasted, for example with incitement or instigation to crime). But "doctrine" is an unclear term. It implies some general set of beliefs, but not necessarily beliefs of a non-factual kind. Marxist doctrine, for example, is full of allegations as to matters of fact ("The history of all hitherto existing societies is a history of class struggle"). Mill speaks also of the wrongfulness of silencing opinion. But this is equally unclear. "If all 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 Review 707. The Trade Descriptions Act, 1968 by contrast creates the offence of making a false statement without specifying that such statements must be as to a matter of fact. As to the factual character of statements about the future and as to present and future intentions see R. v. Sunair Holidays Ltd. [1973] 1 W.L.R. 1105; and British Airways v. Taylor [1976] 1 W.L.R. 13.

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no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind." There is a strong implication that this sentiment refers to views of all kinds, including opinions or assertions as to matters of fact. Indeed, opinions are often about facts or alleged facts. So is discussion and debate and so are beliefs. Mill's aversion to silencing minority views certainly sounds as if it is intended to protect factual beliefs, or opinions as to matters of fact held by minorities, against suppression in the interest of majority or official versions of the truth. So a believer in the flatness of the earth might not be forbidden to proclaim his belief without a violation of the non-assumption of infallibility principle. Nowhere does Mill say that that principle is not applicable to factual beliefs. Nor does he accept the view that such views might be prohibited when dangerous or harmful, since the noxiousness or utility of a belief is, he says, as much a matter of opinion as its truth, and to draw a distinction between harmless and harmful beliefs for purposes of suppression is simply to shift the assumption of infallibility from one point to another. He also speaks of opinions as being capable of truth and falsity and denies the right of society to suppress opinions which it regards as false or pernicious.

Elsewhere, however, (in an essay on the law of libel and liberty of the press) he expressed the view that "the case of facts and that of opinion are not precisely similar". Whilst false opinions must be tolerated, there is no corresponding reason for permitting the publication of false statements of fact. The truth or falsehood of an alleged fact is a matter not of opinion but of evidence".20 At this point Mill has been inveighing against the right of a government to choose a religion for its subjects. Yet religious doctrines contain many allegations as to matters of fact. The existence and characteristics of the Deity and his relationships with mankind are certainly asserted as matters of fact. Mill does not anywhere specify the class of matters that can be established by evidence. The attempt to tie factual matters to those that can be established by testimony, at least as to primary facts, is obviously unsatisfactory. What is the character of an assertion such as "the proletariat is the only revolutionary class"? And is an opinion on the point an opinion about a matter of fact, or an opinion about a matter of opinion? Indeed, one might

20 "Law of Libel and Liberty of the Press", Edinburgh Review 11 11825.

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

Modem liberal free speech theory, it may be noted, has accepted the view (probably inconsistently with Mill's thesis in On Liberty) that, in matters of trade and commerce at least, speech or writing may be penalised on the ground that it is false or misleading. False or misleading claims or assertions need not, of course, relate solely to matters of fact, certainly not in the primary fact sense, or in any sense, since it is possible to be misled or damaged by false expressions of an inferential or classificatory or evaluative kind. But sometimes torts or criminal offences require falsity or deception to be of a factual character.

Defamation law has been singularly unsuccessful in stipulating the nature of those factual assertions that require to be justified as distinct from claims or assertions that amount to comment or opinion - such statements of opinion being protected if they are fair comment.21 Comment, it should be added, bears a restrictive character in this context since the opinion which it expresses must be honestly held,22, not be immoderately framed23 and must relate to a matter of public interest.24 Commenting, however, like expressing an opinion, is not a suitable term to be contrasted with stating a fact, since commenting, like opining, can be embodied in many different kinds of assertion. Nevertheless, the difference between comment and factual statement is said (unhelpfully) to be "a matter of interpretation in the light of all the circumstances known to those to whom the words are published, in particular the context in which the words appear".25 The difference is plainly not that between simple description and evaluation. To say that a man's conduct

21 Mangena v. Wright [1909] 2K.B. 958; Grech v. Odhams Press [1958] 2 K.B. 275. See also Kemsley v. Foot [1952] A.C. 348 and Chap. 6 of the Report of the Committee on Defamation CMnd.5909 (1972).

22 McQuire v. Western Morning News [1903] 2 K.B. 100 at 109 23 Turner v. MGM [1950] 1 All E.R. 449 at 461. 24 London Artists v. Littler [1969] 2 Q.B. 375. 25 Gatley on Libel and Slander 8th edn. P. Lewis, Sweet and Maxwell (1981)

at p. 699.

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is disgraceful is regarded as an allegation as to fact. However, to say that he has murdered his father and therefore is a disgrace to humanity is treated as comment or opinion, provided that the fact relied upon is correctly stated.26 For this purpose, inferences and conclusions are not treated as matters of fact if validly based on implicit or stated facts. The same would be true presumably of allegations as to causal relationships between one event and another. Unfortunately, there is not to be found in the cases any clear general definition of what is to count as an assertion of fact. The difficulty of the supposed distinction between fact and opinion is reflected in the fact that in England it is said to be a question for the jury to decide whether words are an expression of opinion.27 However, it is for the judge to instruct the jury as to whether the words in question are capable of being an expression of opinion.28 Juries must be hard put to it to understand what they are being told when instructed that words are capable of being an expression of opinion, but nevertheless may not be. They may wonder whether there is anything other than an opinion that is capable of being an opinion.

SUMMARY

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

2. Questions arise in two major contexts: (a) Appellate jurisdiction and judicial review; jury trial; precedent and statutory interpretation; and (b) Delimitation of offences and causes of action related to speech and writing (deception, misrepresentation and defamation, together with the implementation of free speech immunities).

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

26 Cooper v. Lawson 8 A.&E. 746 at 752. 27 Aga Khan v. Times Co. [1924] 1K.B. 675 at 680. 28 Sutherland v. Stopes [1925] A.C. 47; London Artists v. Littler [1969] Q.B.

375 (C.A.).

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4. Three types of decisions may be distinguished: those that relate to primary facts or phenomena proved by testimony or physical evidence; 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 have sometimes been treated by superior courts as factual in character (and therefore non-reviewable) and sometimes as questions of law. In statutory interpretation the meaning of ordinary words has been said to be a matter of fact not law.

6. The question whether a decision raises or involves a question of law has two senses: First, whether the making of the decision is itself a decision as to fact or law; and, secondly, whether a question of law may arise out of the making of the decision. A decision about facts may be a factual decision, but may give rise to a question of law if the law requires the facts to be correctly stated or based on sufficient evidence.

7. In the context of offences and litigation about speech and writing, no general characterisation is to be found in the cases of what constitutes an assertion of fact as distinct from a comment or expression of opinion. The making of an assertion as to a matter of fact cannot properly or coherently be contrasted with commenting or expressing an opinion. An appropriate distinction might be framed in terms of a contrast between, on the one hand, assertions of fact and, on the other, inferences from and classifications or assessments of facts (providing that the inferences or assessments had a sufficient basis in relation to the primary facts). The existing uncertainty imports confusion into existing law and future litigation about freedom of expression.

The Queen's College Oxford OX1 4AW England, U.K. (E-mail: [email protected])

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laws, facts, and values || provisional concepts and definitions of fact

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