Against ‘Legal Facts’

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Authors: Mathieu Carpentier
Cited by: 1

Abstract

Abstract 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.

Fields of Study & Subjects

Philosophical Ethics and Theory Free Will and Agency Epistemology Ethics and Metaphysics

Publication details

Journal / source
Canadian Journal of Law & Jurisprudence
Publisher
Cambridge University Press (CUP)
Pages
1–37
Publication date
23 February 2026
Language
EN