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Juristische Interpretationen als Hypothesen

Schlink, Bernhard

Archiv für Begriffsgeschichte, Bd. 64 (2022), Iss. 1: S. 182–192

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Schlink, Bernhard


Interpretations of legal norms are abstract and general, as are legal norms themselves. They are if-then-statements about factual constellations and their legal consequences. Unlike scientific if-then-statements which predict what is expected to happen, legal if-then-statements stipulate what must or must not happen. But like scientific hypotheses, they cover an infinite universe and cannot be verified, only falsified. Therefore, there are no rules that have only to be followed to discover the right hypothesis or the right interpretation. That gives the context of discovery its characteristic freedom. In the context of justification, the discovery has to be tested against the potentially falsifying instances. Scientific hypotheses are falsified by consensus about how to understand reality. Legal interpretations are falsified by consensus about what the text of the norm says, about what the legislature intended, and about the compatibility of the interpretation with the rest of the legal system. The falsifying instances cannot reduce the competing interpretations to one. Since there can only be one decision, judges must choose.