Questions of Law
Law Quarterly Review, Vol. 114, pp. 292-321, 1998
27 Pages Posted: 24 Jan 2006 Last revised: 25 Sep 2009
Date Written: 1998
Difficulties in distinguishing between questions of law and questions of fact have led some to urge a pragmatic approach to the distinction (a distinction important in various areas of the law, and in particular in English administrative law). The pragmatic approach would ask which questions it is useful to treat as questions of law. I offer an analytical approach that seeks to explain which questions are questions of law. I defend the view that a question of application of statutory language is a question of law when the law requires a particular answer to it. The law requires one answer to the question of application (1) in a clear case of the application of the statutory language, and (2) when the court exercises its legal power to elaborate the law so as to require (or interprets the statutory standard to require) one answer.
Keywords: law and fact, analysis, pragmatism, administrative law
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By Linda Jellum