Law, Morality and Facts
Thus far I have explored the relation between the criminal law and morality, including the extent to which the moral principles typically enshrined in the criminal law are objective and, therefore, the extent to which the criminal law might have an objective basis. A good deal of our discussion has centred on the notions of moral rights, harms and severe deprivations as potential sources of objectivity in this regard. It is now time to bring in other dimensions of the criminal law, notably the relations between laws and facts (so-called), albeit once again with an eye to the objectivity or otherwise of the criminal law. 
The distinction between fact and law is a familiar one made in a variety of criminal justice contexts. Thus in jury trials juries are supposed to adjudicate on questions of fact, judges on questions of law (and give direction to juries to enable the latter to arrive at their final verdicts). Of course in one sense the existence of a law is itself a fact of sorts, and so perhaps the distinction is really between legal and non-legal facts.
Here I need to distinguish further between, on the one hand, a legal fact in the sense of a law or other legal instrument which actually exists (as opposed to, for example, an imaginary law or one that some person falsely believes to exist) and, on the other hand, a state of affairs which is not in itself a law (or other legal instrument) but which is specified, or otherwise referred to, by a law, e.g. lawful or unlawful behaviour. What, then, is this distinction?
On the one hand, there are particular (as opposed to general), concrete (as opposed to abstract) facts. An example is the fact (let us suppose) that John J. Jones III is driving his red Ford Fiesta with licence number ABC123 at 55 m.p.h. in the built-up area of downtown Boston, USA on Monday 1st January 2012 at 11 am. On the other hand, there is the content of laws, including with respect to driving motor-vehicles. Consider, for example, a law that states that car-drivers ought to drive under 60 m.p.h. in built up areas.
The first point to notice is that the form of this law is normative (as opposed to descriptive). Accordingly, it does not just describe or refer to some fact or facts with respect to driving behaviour; it prescribes or proscribes certain forms of driving behaviour. The second point is that the content of this law refers not simply to a particular, concrete fact, such as the one mentioned above involving John J. Jones III. Rather the content of the law is general and abstract. As such it refers to a whole set of potential concrete facts involving different drivers, cars, locations and times. The third point is that the law divides this set of potential concrete facts into two categories, namely, lawful states of affairs and unlawful ones, depending on whether the drivers in question are driving above or below 60 m.p.h.
If the content of a law is able to categorise particular, concrete facts in this manner then it must do so in large part, if not wholly, by way of the semantic meaning of this law in a particular language, such as English. Notice that the same facts could be referred to by a law in French as well as a law in English. This raises the question of the interpretation of laws: what is the precise meaning of the law (in some language) in some specific context of application?
This is a complex issue which cannot be dealt with in any detail here. Suffice it to say that although there is some room for vagueness in respect of the meaning of given laws, there needs to be a verifiable fact of the matter in relation to what any given law states and, in particular, what the legislators who enacted the law intended it to mean; that is, there must be verifiable semantic and associated psychological facts. The associated psychological facts in question include intended
meanings, e.g. the meaning of the law that was intended by the legislators who enacted the law. For if this were not so then citizens would not have a common and correct understanding of the content of laws and, therefore, could not reasonably be expected to comply with the law. So on pain of the citizenry not being able to comply with the law there must be legal facts in the sense of objectively verifiable interpretations of the law.
Notice that for the same reason there must also be objectively true statements of logic or reason. For if the citizenry is to be able to comply with the law, then each citizen must not only be able to understand the meaning of given laws, each must be able to apply the law to him or herself on particular occasions. Such application involves a process of deduction or logical inference-making, albeit often of a quite straightforward kind. Here is an example: (1) The law proscribes persons with a blood alcohol level above 0.5 from driving; (2) I now have a blood alcohol level above 0.5; Therefore, (3) The law proscribes me from driving at this time. So on pain of the citizenry not being able to comply with the law there must be objectively true statements of logic and, specifically, logical inferences that are objectively true (or objectively false).
Thus far in this section I have discussed the distinction between laws and fact, yet seen that laws are in a range of important ways themselves factual. Let me now turn more directly to a consideration of the notion of a fact. Facts are often contrasted with theories. Facts are also contrasted with values—moral values, in particular. What is this contrast or set of contrasts? Roughly speaking, factual statements supposedly describe independently existing states of affairs that are, at least in principle, verifiable (and/or falsifiable); these states of affairs exist independently of anyone’s judgement, belief or statement that they exist or do not exist. Accordingly, a factual statement is objectively true (if the state of affairs exists) or false (if it does not). The paradigm cases are statements about ordinary, middle-sized, physical objects and their causal relations with one another, e.g. the gun discharged a single bullet which entered the head of the victim killing him instantly. Such states of affairs obtain (or do not obtain) quite independently of whether or not anyone judges, believes or states—let alone desires or hopes—that they obtain (or do not obtain). Indeed, the truth or falsity of any such judgement, belief or statement itself depends on the obtaining (or not obtaining) of the state of affairs in question.
Earlier we distinguished between objectivism and subjectivism with respect to truth and falsehood. If someone holds that a class of statements is objectively true or objectively false then that person is an objectivist with respect to that class of statements. Subjectivists hold the contrary view, namely, that with respect to a given class of statements there is no objective truth or falsehood. So most people are objectivists with respect to statements about the ordinary physical world. Moreover, we have seen reason to hold that moral beliefs can be provided with an objective basis, e.g. by recourse to the notion of harm and/or of needs-based moral rights. Accordingly, moral beliefs can be true or false, and the behaviour that they prescribe or proscribe, can be objectively correct or incorrect. That said, many people, especially social scientists, claim to be subjectivists with respect to moral beliefs and statements of moral value.
I cannot pursue these philosophical issues here (Alexandra and Miller 2009, Chap. 2). Nevertheless, it is important to understand what is potentially at stake for criminal investigations in these controversies between objectivists and subjectivists. If subjectivism with respect to facts about the ordinary physical world were true then presumably investigators could simply make it up as they go along; there would be no fact of the matter for them to discover. Criminal investigation would simply be a species of ‘creative writing’; the distinction between fact and fiction would have been extinguished. Perhaps this obvious ‘downside’ of subjectivism with respect to facts about the physical world explains why its advocates are few and far between. What is perhaps less obvious is that subjectivism with respect to theories (theory subjectivism), and ultimately moral value claims (moral subjectivism), is also problematic.
Theoretical claims are likely to be regarded as objectively true to the extent that they are based on, for example, objectively true empirical, e.g. observational, claims about the ordinary physical world. So scientific theories in relation to DNA, for example, are at least in large part based on empirical evidence. More generally, if there are physical and psychological statements of fact (e.g. with respect to human intentions and beliefs), and if there are logically valid processes of reasoning (as we saw above), then there is no barrier to there being objectively verifiable theories, namely, theoretical claims that are derivable from physical and psychological facts on the basis of principles of logical reasoning (including not only deduction but also induction). If so, then subjectivism with respect to theoretical statements is false, and objectivism is true.
Of course, subjectivism with respect to theoretical claims, but not observational claims, seeks to sever the connection between the theoretical and the empirical and, thereby, undermine the objectivity of theoretical claims. If it were to succeed there would be profound implications for criminal investigations. For example, the use of DNA evidence by investigators and courts would no longer be tenable, if the scientific theories upon which this use is based were no longer regarded as being objectively true.
In the last section I outlined some candidates for providing an objective basis for the criminal law, namely, the notions of harm and that of needs-based deprivations (in so far as these harms and needs-based deprivations are ones that generate enforceable moral rights). I am not going to revisit those arguments here. Rather I conclude this section by pointing to the implications of moral subjectivism for criminal investigations, given the relationship between the criminal law and moral principles outlined in the last section. Specifically, moral subjectivism threatens to undermine the authority of criminal law by undermining the objectivity of the moral principles upon which the criminal law is based.
If, for example, the moral principle that it is wrong to kill the innocent is not objectively true, indeed no more true than the contrary principle that it is morally right to kill the innocent, then the legitimacy of the law prohibiting the killing of the innocent is called into question. Now consider penal sanctions, such as imprisonment. Unlike many social rules, non-compliance with criminal laws is intended to have, and often does have, quite profound consequences, notably loss of freedom. It is surely problematic, to say the least, to hand out a lengthy prison sentence for non-compliance with a law proscribing some form of behaviour unless there is an objective basis for enacting that law in the first place. If there is no objective basis for believing the behaviour in question to be morally unacceptable, how can we reasonably take away someone’s freedom for engaging in that behaviour? Fortunately, as we saw above, there are objective bases, e.g. the behaviour in question is extremely and verifiably harmful, and to this extent we can justifiably enact laws proscribing such behaviour and apply sanctions to those who breach these laws.
-  Note that we are here asserting a normative conceptual connection between human rights andenforcement. We are not making the more familiar (and controversial) claim that for something tobe a moral right, it must be able to be enforced. Here it is also useful to distinguish betweendifferent orders of rights and duties. For example, arguably the right to life gives rise to the dutynot to kill, but also the duty to protect someone from being killed.
-  No doubt the legal context, including other laws, plays a role here.