What Values Separate Law and Fact?

Abstract

Taking two issues in public law - the distinction between law and fact, and the use of two-step tests – I will set out a framework for thinking about the methodology of creating distinctions in law, taking the second point largely as a way of showing that some of the methodological issues with the law/fact distinction are pervasive in public law. I then make some broad conclusions about the way in which values could be used to distinguish between law and fact, and by extension to describe the operation of two-step tests more neatly. I suggest that the methodological discussions here are a fair and serious challenge to claims that law and fact can be understood separately, and claims that two-step tests can meaningfully operate separately from normal tests of legality. If this kind of analytical jurisprudence is incapable of giving any kind of useful framework for the distinction between law and fact, then our ideas of what the distinction between law and fact could be might need to be reframed. I conclude by suggesting some possible responses, and indicating which seems most useful, notwithstanding some residual problems.