Die epistemische Autorität der Gerichte: Generelle Tatsachen in Verwaltungsprozess, Verhältnismäßigkeitsprüfung und judikativer Rechtserzeugung

Through the investigation and interpretation of general facts, courts exert influence beyond individual cases. This influence and the processing of empirical knowledge constitute judicial epistemic authority. Such authority rests on self-authorization: courts establish themselves as knowledge-processing institutions by interpreting procedural law, narrowing or expanding the prerogative of assessment of the legislative and executive branches, and constructing their own epistemic infrastructure. This article examines three contexts of judicial epistemic authority: First, individual proceedings governed by the official investigation principle (Amtsermittlungsgrundsatz), where general facts are central (case study: asylum procedures). Second, the proportionality principle, in which the assessment of appropriateness (Angemessenheit) often becomes an extended inquiry into suitability and necessity, resulting in an epistemization of the appropriateness test (case study: judicial review of COVID-19 measures). Third, judicial lawmaking, in which courts adapt norms to social change and new knowledge (case study: public security law). Across all three contexts, legal decision-making becomes epistemized, that is, justified through knowledge claims rather than value judgments, or through a blend of both that conceals its normative dimensions. This process of epistemization serves as a key source of judicial legitimacy and a central factor in the courts’ position within the separation of powers.