Year:    2016

Author:    Hoffmann-Riem, Wolfgang

Die Verwaltung, Vol. 49 (2016), Iss. 1 : pp. 1–23

Abstract

“Extra-juridical” Knowledge, common-Sense Constructions of Reality, and Heuristics in Administrative Law

The interpretation and application of law requires access to non-legal knowledge in several dimensions. Of importance for the interpretation of a law are the legislative facts to which it makes reference in a general matter. The application of law to specific problems requires another type of facts: information about the specific facts and circumstances of the problem at hand. If consequences of a legislative or administrative decision need to be taken into account, facts are needed as the basis for making prognoses. The legal system and juristic methodologies offer only limited assistance when it comes to generating and interpreting facts and how they are handled for prognostic purposes. Supplementary resort to the findings and approaches of extra-juridical disciplines is the subject of discussions concerning multi- and interdisciplinarity. Such debates have wrongly been limited to the utility of academic methods and findings. The problem of lack of knowledge, which also needs to be tackled for legal studies, can be overcome to only a limited extent by resorting to knowledge that is academically certain. The study and practice of law have to a great extent always used not only common sense constructions of reality and everyday day life experiences but also heuristic approaches, as well as falling back on intuition and practical wisdom. Such approaches have strengths as well as weaknesses, but they are often the only alternative. The article urges that the use of such approaches when making decisions not be discredited out of hand but instead that it become more widely recognised and discussed. Such use must be justifiable, at least in terms of the plausibility and normative tenability of the approaches and assumptions.