Crafting Fact and Law

These two statements, one declaring pride in “crafted” laws and the other expressing suspicion of “manufactured facts”, elide an important detail: that every law is a social fact. Every time a new law is crafted, a new fact is manufactured. A.V. Dicey observed that legislative opinion is the result of facts more than philosophy and “no facts play a more important part in the creation of opinion than laws themselves” (Lectures on the Relation Between Law and Public Opinion, 1905). The consideration that reconciles the statements made by Biden and Klobuchar is concern for how facts are made and by whom. Facts (including laws) which are established through reliable and rigorous processes conducted by accountable and capable people are unobjectionable. This, after all, is the very reason why we tend to trust facts established by scientific experts. It all comes down to the quality of the factory in which the fact is made, and this, to put it another way, is a question of whether the author has authority, for “[t]o understand why anyone is taken to be an epistemic authority – an authority on truth – it is vital to understand what authorises them” (Baggini, A Short History of Truth, 2017).