Ernst Höhn, Wie grau ist die Theorie? Gedanken zum Verhältnis von Doktrin und Praxis in der Jurisprudenz, AJP 4/94, p. 411-424.
Hoehn Ernst – Wie grau ist die Theorie
Summary
This text is the published version of Prof. Dr. Ernst Höhn’s farewell lecture. The lecture deals with the relationship between doctrine and practice in the field of law.
Prof. Höhn commences by asking how doctrine and practice relate to each other in daily practice. Do they ever even take notice of one another? Or, can one even influence the other? To answer these questions, law has to be divided into different disciplines (application of law, legislation, legal design). These three disciplines are further split into substantive issues and methodological problems relating to procedures. Within these six areas, one can identify three different types of relationships that doctrine and practice can have with one another: dialogue, monologue, ignorance.
For the most part, Prof. Höhn focuses on the different relationships in the aforementioned areas. He concludes that a dialogue between doctrine and practice can only be found in two of these areas. While in one of these areas, the doctrine is basically a monologue, in two of these areas, the doctrine ignores, for the most part, the practical issues.
In a subsequent part of the text, Prof. Höhn tries to identify the ideal relationship between doctrine and practice. He deals with this issue from two sides. On the one hand, the question of whether practice needs the doctrine at all can be raised. The question is posed as to whether practice even relies on scientific processing of the legal material at all. On the other hand, an investigation is conducted as to whether academic science and doctrine should align on the practical needs of lawyers instead of understanding themselves as science. Prof. Höhn’s response to the first question is affirmative and refers, inter alia, to article 1 para. 3 of the Swiss Civil Code. The second question is answered by taking into account the education of lawyers, where the design of the law school curriculum plays an important role. Prof. Höhn concludes that theory and practice are not in contrast; rather, they complement each other and thus should deal with and resolve the same issues. Thereinafter, teaching and research are addressed again. The objective of studying law should be to acquire the skill of creatively solving legal problems and to be capable of practicing thinking that is both holistic and solution oriented. The legal doctrine must thus contend with the legal practice and direct itself towards substantial and complex issues rather than towards individual subjects. At the end of his lecture, Prof. Höhn answers the question posed (How gray is the theory?) in the presentation’s title:
“Legal theory is not, in any way, gray. In any case, it does not have to be gray; rather, it can and should be colorful.” (p. 423)