Legal best Practices: Von der tatsächlichen zur guten Übung in der Rechtsanwendung?
Abstract
The author proposes a recognition of „legal best practices“ in the day-to-day administration of justice in order to strengthen the legal practitioners’ sense of appropriateness. Thus, he estimates that the gap between everyday justice and the discussion about how justice should be carried out could be reduced and perhaps even filled in the long run. The author’s approach is twofold: First, he gives two practical examples in order to demonstrate how legal practitioners choose between alternative possible actions and, by doing so, adhere to a position that can be discussed a posteriori by all practitioners. By doing so, he shows that, in most cases, legal practitioners do not choose their position arbitrarily but follow strategic, moral or ethic values. Hence, the appropriateness of the values that lie behind the choice of a possible action may be subject to discussion. Second, on a more theoretical basis, the author makes an effort to defend a broad concept of law, which includes and even requires legal best practices. According to the author, legal best practices are the result of an action-based, commonsense appropriateness that may emerge in the administration of the law. Therefore, they do not only belong to the reality of law but are also part of its theory. Since commonsense appropriateness is not self-evident, a theory of law has to provide the practitioner with valuable criteria for his choice between possible actions. The author concludes that legal best practices, if understood as commonly accepted answers to practical legal problems, can establish a professional standard of conduct, once they are made explicit.