How the Facts Enter Into the Law

Abstract

This article addresses the role of “facts” in the application of the law; distinguishing “facts of reality”—things as they are—and the “state of facts” as established by a court when rendering a judgment. The law being a normative order, an order of “ought”, can only process “facts of reality” by transforming them into “states of fact”. This process designates their entry into the legal system. Hence the author construes the finding of fact as being a separate, procedural act of law, its formula being: “The court deems it established”. Of course, the “state of fact” itself is often layered and contains normative elements, which are transformed into factual ones. This repeated transformation is prone to errors and conceals accountability in the relationship between the court and expert witnesses. This is a particularly topical issue which even increased cooperation may not change for the better; instead, the separation between expert knowledge and decision making should be made transparent.