Is there only One Correct Legal Answer to a Question of Fact? Three Talmudic Answers to a Jurisprudential Dilemma

• Published date: 01 December 2016
• Author: Martin P. Golding,Yuval Sinai
• DOI: http://doi.org/10.1111/raju.12144
• Date: 01 December 2016

Is there only One Correct Legal

Answer to a Question of Fact? Three

Talmudic Answers to a Jurisprudential

Dilemma

YUVAL SINAI and MARTIN P. GOLDING

Abstract. This article focuses on questions of pure fact-of-the-matter and asks

whether two omniscient judges (or jurists or scholars) may disagree over the legal

answer to a straightforward question of a matter of fact. There are approaches to

legal theory among some western and Jewish philosophers of law whereby at least

superficially it is possible that two or more contradictory legal statements regarding

a given reality can be equally correct. The article provides a critical analysis of three

different models derived from the Jewish legal literature, and reviews the contribu-

tions of Jewish sources to the understanding of the phenomenon of disagreements

concerning matters of fact.

Human reason knows a simple and indivisible truth piecemeal and through

opposing views, with the result that it never adequately measures up to it. The

weakness of human reason was evident to Cusa because its primary rule is the

principle of noncontradiction, which states that contradictories cannot be simulta-

neously true of the same object. He insisted that there is a “coincidence of

opposites” [coincidentia oppositorum] in reality, especially in the infinite God.

—Nicholas of Cusa (1401–1464), quoted in Edwards 1967, vol. 5, p. 497

1. The Dilemma

Does the principle of bivalence (the assertion that every statement is either true or

false) apply to matters of fact? The present article considers three answers to this

jurisprudential dilemma. Given that in the article we examine the legal answer (or

conclusion) to a question (or matter) of fact, we use the legal analogue of the princi-

ple of bivalence (Golding 2003), that is, the assertion that every statement of law

that can be formulated using the vocabulary of a given legal system is valid and

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correct or else it is invalid or incorrect. We therefore prefer to use the term correct

(or right) and valid rather than true.

It seems irrational to argue that we could have two or more contradicting state-

ments of law about a straightforward matter of fact, all of them correct and valid.

1

Nevertheless, the issue is not so simple, as we are dealing with facts in the legal

context.

Although the distinction between matters (or questions) of law and fact seems

intuitively obvious, we think it can be made more precise for the purposes of this

article, by using Hans Kelsen’s normativism (Kelsen 1967). According to Kelsen,

laws are norms and the normativity of norms is expressed by the idea that, when

properly formulated, laws tell people (primarily judges) what they ought to do, and

by extension, what they ought not to do. It seems clear that this formulation does

not apply to statements of fact. But laws and norms are often based on findings

about facts, and according to Kelsen, the facts are always judicial, as found by the

court, and not true facts in any extralegal sense. Indeed, as argued by a recent

scholar of legal epistemology, “it is crucial to see that the valid/invalid distinction

does not map neatly onto the true/false verdict dichotomy” (Laudan 2006, 13). We

settle the truth of a verdict by comparing it with the facts. By contrast, we settle the

validity of a verdict by comparing it with the evidence presented at trial, asking

whether that evidence meets the applicable standard of proof. If one were to ask a

typical lawyer whether there might be more than “one correct answer” with

respect to factual questions, the lawyer might well say something like the follow-

ing: Of course there can be. Factual “truth” in the legal context is partly con-

structed. It relies on set procedures, which might yield results different from the

actual “facts-of-the-matter.” And different procedures, or the same procedures tak-

ing different avenues, might yield different results. In any event, regardless of the

procedures employed, fallible human beings will disagree. Moreover, questions of

fact are often substantively intertwined with questions of law, so that to the same

extent that there might be more than “one correct answer” to questions of law,

there will also be more than “one correct answer” to such mixed questions of law

and fact.

The present article is based to a great extent on the important distinction

between monistic and pluralistic approaches. Many theoreticians have addressed

the following key question: Is there only one right answer to every legal question,

or are there difficult cases in which the judge has the discretion to choose between

various alternatives. A typical defender of the monistic position in law is Ronald

Dworkin, who raised a variety of arguments in support of this thesis (Dworkin

1985, 120; 1977). Ronald Dworkin is known for maintaining that there is (almost)

always a right answer to questions of law. At one point he suggested that the right

answer is the one that would be given by Hercules, a judge who has omniscient

knowledge of the law (Dworkin 1977, 105; 1986, 264). Dworkin argued that the

monist theory is valid even if we do not always know the right answer. Dworkin’s

“one right answer” thesis has been challenged by Hart and others when it comes to

questions of law. Proponents of legal pluralism adopt the opposite view. They

1

See, however, Frank (1973), who is highly skeptical about the abilities of judges and juries to

rationallydecide questions of fact.

Is There Only One Correct Legal Answer? 479

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