Abstract

Legal theories and doctrines should serve the legal practice. All theory is vain if it has no practical impact. Nonetheless, legal scholars have questioned the idea that decisionmakers in the legal system should consider their decisions‘ factual consequences. It is often claimed that this would lead to arbitrary judgments, thereby rendering the application of the laws unpredictable. I will argue that decision makers in the legal system necessarily need to consider such factual consequences and, moreover, that they ought to do so. The reason is that the consideration of factual consequences is already a necessary (yet implicit) element of the classical legal methods of construction. If handled properly, the consideration of factual consequences could even help to make legal decisions more rational. Therefore, constitutional boundaries do not strictly forbid this decision-making tool.