Whether a question is law or fact is really a policy choice in disguise

Evidence

This is so, in the first place, because the posing of the question may result not in a direct answer but in a reformulation by way of elaboration of the governing general proposition - that is, for example, in a more precise definition of what is meant by “lottery”. There may be, in other words, a further exercise of the function of law declaration altering the form of the question of law application which will have ultimately to be decided. To ask whether the initial question of law application “is” a question of law or fact is to conceal crucial issues of policy as to whether this further elaboration should take place. The real problem about such questions is not whether they are questions of law or fact but rather whether they ought to be treated as law or fact. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 127

Categorization

• DEFINE: The key normative reformulation: the real question is whether a matter ought to be treated as law or fact, not what it intrinsically is.
• XREF: connects to: Competent fact-finding must describe events without using the legal terms at issue — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 111; Identifying valid legal criteria in any system is an empirical question of fact — HLA Hart, The Concept of Law (Clarendon Law…, 682; Institutional allocation of rule-making duty depends on the type of question at stake — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4174 (+1 more)

Broader Connections

• Identifying valid legal criteria in any system is an empirical question of fact #corroborates (0.85) — HLA Hart, The Concept of Law (Clarendon Law…, 682
• Institutional allocation of rule-making duty depends on the type of question at stake #corroborates (0.80) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4174
• Whether legislatures or courts better adjudicate claims is an unsettled comparative question #corroborates (0.80) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 2296