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Questions of fact and questions of law: distinction and consequences

Document Citado por Related
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AutorGabriel Cabral - Luiz Felipe Teves de P. Sousa
Ocupação do AutorGraduate Student at Federal University of Rio de Janeiro - Graduate Student at Federal University of Rio de Janeiro
Páginas2507-2519
Working Group: eory of Law • 2507
Questions of fact and questions of law
Distinction and consequences
Gabriel Cabral1
Luiz Felipe Teves de P. Sousa2
Abstract: This paper intends to argue that even though there is no clear test on
howtodierentiatefactfromlawquestionssuchevaluationisimposedon the
ones who have to make decisions in judicial framework. In judicial practice, it
is not a judge’s role to promote speculative or theoretical discussion, but practi-
calargumentsthatreachadecisionAccordingtotheLawmoonojudgecan
freehimselffromadecision aboutaconictthat wasgiventohimbyclaiming
that the question is somehow complex enough that could prevent him to use his
technicalknowledgeand experiencenor yetpacied inthe correspondentsci-
enceeldinsuchawaythattheownassistancefromanexpertcanalsobecome
useless. The State, when provoked, can not abstain from giving an answer. Such
problematic reality based on the obligatoriness of taking early decisions is com-
mon to both juridical traditions of the occidental world. While in the Common
Law such questions have entailments in the division of appreciable subjects
betweenJuryandJudgeandinthelteringofthequestionsthatcanberevised
questionsoflaw intheCivil Lawsuch questionsfocuson therestriction of
subjects that would be appreciated by the appeal courts. Thus, as the distinction
is essential, it is fundamental to research how it occurs. The jurisprudence is
analyzing this question limiting it in three matrices: ontological, epistemologi-
calandanalyticalclassicationpresentedbyAllenandPardoTherst
eldregardsthedistinctionofthenatureoffactandlawThesecondexaminesif
theepistemologicalobjectivessuchasaccuracyjusticationandtheseparation
ofknowledgefrommerebeliefaredierent Finallythepurposeofthethirdis
tocheck ifthey canbe dieredas setswithmutually exclusiveelementsIfin
noneoftheseelds itcouldbe possibletoestablish agroundeddistinction the
only choice to those applicants would be a pragmatic one. In this sense, the line
that divides the questions to be treated as of fact or law would be drawn by al-
location. Finally, it will be analyzed how the higher Brazilian Courts have been
facingthisquestionWhichpathshavebeentakenbytheseCourtstolterfact
1 *Graduate Student at Federal University of Rio de Janeiro (gabrielac00@yahoo.com.br)
2 **Graduate Student at Federal University of Rio de Janeiro (ldps@gmail.com)

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