Making New Law. The Limits of Expert Advice
28 Pages Posted: 11 Feb 2005
Date Written: February 2005
Doctrine is a protective tool. It shields individual lawyers from political vulnerability. They are only executing the legislator's will, or they are embedded in the legal system when relying on precedents. All lawyers know that there is an element of fiction in this narrative. Doctrine usually leaves significant room for decision making. The borderline between applying the existing and making new law is never a clear one. And not all lawyers do doctrinal work. Others openly contribute to legal reform.
This paper claims that professional lawyers do indeed have a proper role in designing new law. They can help making this a more rational endeavour. Yet there is a long list of caveats to this statement: complexity and uncertainty, epistemic limitations, the autonomy of addressees and their social embeddedness, fundamental normative relativity and the autonomy of law as an institution: all of these have to be taken into account. They make the advice of legal experts more demanding and less reliable. Yet there are ways to maintain a role for expert advice, sketched in the conclusions of the paper.
Note: Downloadable paper is in German.
Keywords: Lawyers advising policy-makers, complexity, uncertainty, epistemic limitations, autonomy of addressees, social embeddedness, fundamental normative relativity, rule generation vs. rule application
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