Rättsförhållandens och sakförhållandens ontologi

Sammanfattning: This essay concerns the ontology of law and fact and how to distinguish between them. The question is of big importance in civil as well as common law. Definition and distinguishing has caused problems for both the practical law and the jurisprudence. I have critical reviewed literature on jurisprudence and procedural law. As to the jurisprudential I’ve found three different main positions; that law and fact are different, that law and fact are the same and that the differences of law and fact is a question of degree. To establish a difference between law and fact the fact has been considered to have a truth-value whereas the law lacks that. I will argue that this position is wrong and unfortunate. Those who consider law and fact to be the same will consider both or neither to be fact. I don’t mind viewing both law and fact as fact, but I have problems accepting this as meaning that there can’t be any other difference between the two. The position of neither being fact I consider wrong. Concerning those theories which view the difference as one of degree I have yet to find a sufficient analysis of what that would consist of. I reckon every distinction derived from the legal consequences of the definition to be a circular argument. Finally, I account for the theory of institutional and brute fact by John Searle and the institutional theory of law by MacCormick and Weinberger and find those to be helpful for a better understanding between the distinction of fact and law in future jurisprudence.