4. THE JUDICIAL ESTABLISHMENT OF FACTS
4.1. The Constitutive Nature of the Establishment of Facts
something in the procedure resulting in that, Finally, "the 'facts' are what the judge thinks they are".3 This statement, being the recog-nition of the particular ontological character of law, has nothing to do with any pessimism, subjectivism or agnosticism. It is a statement of the fact that, by having formalized the operation in question, it has turned out that no longer, is it "the 'pure facts' but rather the factual premises that are the conditions of a certain decision".4 Thereby the presence of facts is reduced to their statement, i.e. to their representa-tion claimed by their statement assuming tacitiy that, in the final account facts will be substituted by their statement. As a matter of fact there is nothing new in it. As an underlying assumption, it has already been formulated by the analytical-doctrinal reconstruction of the system. "Only by being first ascertained through a legal pro-cedure are facts brought into the sphere of law or do they, so to speak, come into existence within this sphere. Formulating this in a somewhat paradoxically pointed way, we could say that the compet-ent organ ascertaining the conditioning facts legally 'creates' these facts." And it is so because "[i]t is only by the ascertainment [of the fact of a delict representing an entirely constitutive function of the court] that the fact reaches the realm of law [...], it is for the first time created as such in law [...]. In juristic thinking the procedurally established fact replaces the fact taken in itself that in nonjuristic thinking is the condition for the coercive act. Only this ascertainment itself is a 'fact' [,..]".5
2 FRANK (1949), p. 15.
3 FRANK (1930), p. XVIII.
4 KLAMI (1980), p. 74.
5 KELSEN (1946), p. 136, resp. KELSEN (1960a), pp. 244, 245 and 246 [in the translation of Max Knight, cf. KELSEN (1960), pp. 239, 239 and 240, as corrected by Cs. Varga]. Cf. also, in the same sense, KELSEN (1979), p. 106. It is to be noted that this recognition could have sounded too revolutionary for the contemporary to an extent that, even several years later, the remarkable Swedish
In this way, the procedural medium and context are far from being features outwardly added to a process running its own way.
Procedurality is a fundamental constitutive function. As a result of it, only that can be present which has been formulated by a procedural agent in a procedural situation. Even those models of procedural systems which formulate, and oppose each other, the ideals of formal justifiability and of material efficacity (con-ceptualized as subsumption-oriented and consequence-oriented approaches,6 as due process and efficient control models,7 or, within the realm of the establishment of facts, as fight and as truth theories8) are in the final analysis relativized in the sense that they are all only varieties within the basic institutional determination—all being based upon, instead of being opposed to, it. No matter how they are conceptualized, they are all procedural in a stronger or a weaker sense. Or, the definition of any one of their sides, in principle, applies to both of them. Any of them is constructed in a way that, within the process of efficiently reaching the material target, it "restricts procedure by in-built programmed conditions for justice in the interest of recognized values".9 That is to say that their specificity within their basic procedurality can only appear in the way and to the extent of limiting the process.
"An ideal procedure consists of a system of rules which tells us in precise and unambiguous language what to do from one moment to the next."1 0 Such a procedure is obviously ideal for guaranteeing the maximum of foreseeability and of reliability of the repetition of the operations involved. Unfortunately, a procedure like this is only
thinker dared repeat it only compromisingly: "In so far as [the facts] are covered by the judgment, they have, so to speak, been replaced by the judgment [...]. The judgement is now the relevant fact." OLIVECRONA (1971), p. 204.
6 E.g. ECKHOFF and JACOBSEN (1960).
7 E.g. PACKER (1964).
8 E.g. FRANK (1949).
9 LUHMANN (1972), p. 351, note 56.
1 0 KENDAL (1980), p. 58.
good for jobs with data to feed in and operations to be done entirely pre-codified, that is, a precondition which is seldom given. For in practice mostly either an externally defined alternative of decisions is to be built into the process or the program itself has to be transformed into a learning program which is able to use self-selection and self-determination in its adaptation to the nature of the job.
At the same lime, by the definition of the procedure as a norma-tive program, procedurally as a specific instrumental value will be built into the process. Consequently, the justifiability of the whole process and also its direction will be a function of, as defined by, the projections of the procedural order. This again lums up as a source of contradictions and inevitable discrepancies in view of the genuine issue of the process. On the one hand, each alternative decision is a switch that defines the direction of the whole process in a way that, by providing exclusive starling points for any further switch(es), it can, from the very start, determine the result of the whole process. This means that the very first switch can reduce the chances of realization of the original target to less than the mini-mum. (Let us take, for instance, the alternative offered by routine answers of service regulations which can, with equal procedural value, cover all possibilities—from an answer to the merit via the minimalization of the question, the channelling of the answer sideways, its rejection or negation, to the punishment of a mere formulation.) On the other hand, procedurally will filter all materially relevant factors (and considerations and standpoints), in order to accept as its own factors in procedure only those which it selects according to their procedurally evaluated and established conformity to the medium—which is a purely formal consideration, entirely alien to the materiality of the original target.
These are felicity conditions," making the entirety of the process apparently arbitrary. Nevertheless, it is rather the otherness of the language, that is, of the medium in and by which
1 1 Cf. AUSTIN (1955). p. 14.
we speak. And by speaking we do not tell (i.e. describe linguis-tically-logically) something here, but rather do something (i.e.
establish an institution by the act, which is more specific than the act, of communication). In order for an institution to come into being by a performative utterance, some conditions are to be met. Notably, (1) "the convention invoked must exist and be accepted", and (2) "the circumstances in which we purport to invoke [this procedure] must be appropriate for its invocation".1 2 Therefore, in contrast to the descriptive statements, either true or false, performative utterances can only be felicitous or infelici-tous.1 3
Having in mind that the specific use of the performative utte-rance is to bring about something institutional, there is no relevance to interpreting it in a direcdy cognitive way. The only consideration that acts as a criterion in it is whether doing by the use of language is, in the function of the linguistic act and the entirety of its contexture, able or not to bring about the institution in question. Or, this is nothing other than the basic principle of procedurality: to render to function a purely procedural mechanism in order to select what statements claiming to point to the issue can and shall be involved in the procedure.
In consequence, if we are to describe felicity and truth as aspects crossing one another,1'' we have to emphasize at the same time that these are criteria entirely independent from each other, with no
1 2 AUSTIN (1961), p. 224.
1 3 Cf. AUSTIN (1961). p. 224. Or, "(A.l) There must exist an accepted conventional procedure having a certain conventional effect, that procedure to include the uttering of certain words by certain persons in certain circumstances, and further, (A.2) the particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invoked. (B.l) The procedure must be executed by all participants both correctly and (B.2) completely."
AUSTIN (1955), pp. 14-15.
1 4 Cf. GIZBERT-STUDNICKI (1979), pp. 143-144.
use of confronting them with one another. For felicity tells only and exclusively about the potentiality of a statement to establish it as an institution. Or, the other way round, it is in point of principle arbitrary for all other considerations. On the other hand, truth is purely epistemologically a criterion, ideally in-dependent from any human institution. The independence of the standpoint is to be emphasized particularly in the present context as the institutionalized procedure may itself make use—as the judicial establishment of facts traditionally does—of the notions of truth/falsity. However, "truth" and "falsity" in the sense of institutionalized procedure can at the most be related only no-minally lo trulh/falsity in the epistemological sense, as a kind of their ideological substitution. For any statement of truth/falsity in procedure is itself procedural in character, meaning and impact here. "What is said to be true by this procedure of the law is taken as an established truth for all the ulterior purposes of the law, unless and until it is quashed on appeal."1 5 It is why procedure can be conceptualized as a "truth certifying pro-c e d u r e "1 6 only by assuming that what the procedure can, within
1 5 MacCORMICK and BANKOWSKI (1986), p. 129.
1 6 BANKOWSKI (1981), p. 265.
statement as act
felicitous
infelicitous
it d o e s not matter
the o n l y factor that matters
true false
and for the sake of the same procedure, prove is nothing more than procedural truth.
All this is expressed by the random-like result of the procedure as well. For instance, the procedure is shaped along the lines of artificially introduced notional dichotomies;1 7 in contrast to the poly-valency of cognitive processes, it is ruled by a bivalent logic according to dichotomized conceptual classes mutually excluding one another;1 8 as a consequence, all motion and change are processualized in procedure, therefore "[a]ny failure to maintain the due form negates the whole process" in the same way as even the bare chance of the rejection of the procedural claim (e.g.
"police [...] knowledge is based on facts, cogent enough for moral certainty, but lacking possibility of proof by legal standards") can block the initiative to take any action at a l l . "
It is necessary to conclude that, in the final analysis, truth in the epistemological sense is neither enough nor strictly necess-ary to establish truth in the procedural sense. What is more, we can merely say that it is only the procedural establishment of the falsity of a claim to state facts as a true statement of facts that excludes from the very start, and within the same process, the procedural establishment of truth of the same statement of facts. (And we can see that even the use of criteria of absence of defense and defeasibility,2 0 instead of the ones of felicity and infelicity, could not challenge the issue either, as the rejection of ascription would also be founded not on any falsity in epistemological sense,2 1 but on its procedural establish-ment.)
1 7 E.g. LEVY-BRUHL (1964), p. 33.
1 8 VODINELIC (1974), pp. 88-89.
" E.g. SLATER (1961), p. 722.
2 0 HART (1949), pp. 189-190.
2 1 As it is claimed by, e.g., LEGAULT (1977), p. 183.