Praktikabilität als rechtliches Argument?

Practicability often serves as an argument in legal debates. Yet, the extent to which practicability can even function as a legal argument has hardly been investigated so far. This is all the more surprising since the very idea of practicability contradicts the understanding of law as an order of ought. Therefore, the article begins by analyzing how the argument of practicability is used in law – especially in German constitutional and administrative law -, on which levels it is employed, and which particular backgrounds motivate its application. These findings are compared with doctrinal, methodological, and theoretical insights into the impact orientation of law in order to evaluate the degree to which the use of practicability as a legal argument is convincing. Against the backdrop of these analyses, the application of practicability arguments turns out to be convincing when choosing between several legally justifiable alternatives or in cases where the applicable rule itself suggests that such aspects can be considered. Moreover, the argument of practicability can also be invoked at the legislative level. However, practicability considerations are often employed beyond these situations. This requires further justification – in particular since the »reality check« that these arguments imply remains methodologically unclear. While administrative actors and courts may legitimately pursue such an approach due to their democratic legitimation, this does not equally apply to jurisprudence. Jurisprudence must convince only through sound arguments and therefore has to develop its practicability references in a more theoretically, methodologically and doctrinally reflective manner than is currently practiced.