3. THE IMPUTATIVE CHARACTER OF THE JUDICIAL
3.12. Ascriptivity as End Result
The investigation of both the nature of facts and the embodiment of their approach in law by a normative-evaluative process may lead to a rather unambiguous conclusion. According to i t the judicial establishment of facts is by far more complex than a merely cog-nitive reflection (disanthropomorphized by its ideal) of the real events of die outside world.
It seems that even the use of language points to such a con-clusion.
Within the frame of linguistic analysis, it is a commonplace to realize: when I say, "He did it" or "This is mine", I do something differing from what I mean when I say, "It's raining". Evidently, the latter describes a given part of reality, therefore my statement will necessarily be either true or false. But, in contrast, when I make the former statements, I act differently, explainable only in another context. For, fundamentally, the former statements are not descriptive, but ascriptive in character. That is to say, under certain
"Moral predilections must not be allowed to influence our minds in settling legal distinctions." HOLMES (1882), p. 148. Similarly, see LUHMANN (1985b), p. 4.
For a treatment of this dilemma in Ihe light of "the fallacy of wlute or black", see THOULESS (1930). ch. 9. Cf. WILLIAMS (1945), passim, particularly at p. 82.
conditions, a certain institutional framework is attached thereby to a given act and/or actor, and thereby he/she or his/her act will be framed within a definite institutional position and judged according to a definite institutional quality (mostly: responsibility).
Consequently, the establishment of such an ascriptive insti-tutionalization is logically dependent on accepted rules of con-d u c t .1 9 8 And all this is done by use of concepts that "are defeasible [...] to be defined through exceptions and not by a set of necessary and sufficient conditions whether physical or psychological".1 9 9
The theory of the ascriptive action by the use of language has been widely criticized. One of the debated points was its linguistic paradigm: how could language be treated as a potentiality with many logically unrelated practical uses without developing its own structures which would correspond discretely to those uses?2 0 0 Another of the topics of discussion was its conceptualization: why was it brought about as a theory of "action" instead of having been built upon, e.g., responsibility?2 0 1 In the final analysis, however, the debate has strengthened and reasserted the position according to which, one, such a statement is ascriptive, and two, because it is open textured,2 0 2 its definition can at most be partial and imper-fect. That is, it is irresistibly open to clauses like "unless" and
"etcetera", and so o n .2 0 3
It involves the recognition that ascriplivity is not a linguistic function simply. Even if seen from a semantic aspect, it is praxeologically defined. This is why linguistic expression can he quite indifferent in itself, equally open to use in descriptive and ascriptive senses as well. Cf. FE1NBERG (1964), p. 148.
1 9 9 HART (1949). p. 189.
2 0 0 As contrasted to Chomsky's generative reconstruction of language, see
"Jurisprudence" (1967), p. 189.
2 0 1 E.g. GEACH (1960) and PITCHER (1960), as well as
GIZBERT-STUD-NICKI (1976), pp. 133-140.
2 0 2 Cf. WAISMANN (1951), pp. 117-144.
2 0 3 Cf. HART (1949), p. 173 and passim.
All in all, it seems that the fundamental dilemma can only be answered through reformulating the old philosophical problem in a new context. "Imputation (imputatio) is [...] a judgment by which somebody is considered to be the author (causa libera) of an act, regarded thereby as fact (factum) within the range of the law; a judgment which turns into an imputation which is valid (imputatio
iudiciaria s. valida), albeit it is only to be judged for the dme being (imputation diiudicatoria)."20* Or, the key notion of norma-tively exerting an influence is imputation here. It is imputation that, by distributing normative roles in real life and by applying the abstract and general norm formulation lo individual life situations, concretizes and actualizes this norm. That is, it is the ordering principle which, in the field of normative reference (built upon life events ruled by the law of causality), establishes links. Or, by selecting and naming links, it produces them and makes them visible.2 0 5
At the same time, this is the concept that shows in full both the normative embeddedness and the overall imputative determination of any understanding of facts in law and legal process. This can be seen from the above cited definition by Kant and from early formulations as well, telling much about the primitive idea in the very background. For instance, one of the first statutory drafting was worded as follows: "Every such [...] person [...] shall be adiuged a traytor, and his fact high treason." Somewhat later on, a report on parliamentary debates went on to say: "The fact of him who acts the Gardian, is imputed to the Co-gardians."2 0 6
It can be seen that ascription is particular just because and insofar as it occupies an intermediary position between fact and
•w KANT [17971. Einleilung IV [III. pp. 31 el seq.]. cf. Kant-Lexikon (1961), p. 621.
2 0 5 See, e.g., KELSEN [ 1950], the source and purity of which is highly
dis-cussed notwithstanding. Cf. WILSON (1986) and STEINER (1986). pp. 5 4 - 6 4 , respectively 7 0 - 7 1 .
2 0 6 Act 31 Hen VIII. c. 8 (1539), respectively PRYNNE (1643), quoted in The
Oxford English Dictionary (1971), p. 947 [pp. 11-12].
norm. Evidently enough, it presupposes some facts—but it neither states them, nor describes them; at the same time, the inter-pretability of those facts is selected by the norm—but again, it neither states it, nor names it. "He has done something different from either of these two things: he has drawn a conclusion from the relevant but unstated rule, and from the relevant but unstated facts of the case."2 0 7
Accordingly, establishment of facts in a judicial process is nothing other than one of die sides of the unity of fact and law, in which a given person and a given set of facts become attached to one another, in order that the normative mechanism—by starting the intellectual operation of legal reasoning which will range from the identification of legal relevancy to the meting out of consequ-ences—can be put into action.
HART (1953), p. 10.