a Comparative Perspective
Elgar Monographs in Constitutional and Administrative Law series
Chapter 4: The principle of legal certainty
Over the years, legislators have tried to deliver a perception of legal certainty as a synonym of continuity, determinacy and, above all, predictability. The legal relevance of legal certainty can be inferred from the principles that make up the rule of law, notably ‘the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs’, ‘efficacy’ and ‘stability’. Legal certainty has been pursued by avoiding ex post facto laws; respecting acquired rights; adopting permanent laws; and seeking textual clarity and intelligibility. Lasting laws meant ‘to govern perpetually’ have been regarded as the standard or the ‘normal’ form of legislation. The attachment to the symbolic value of legislation and its continuity is particularly strong in civil law countries. However, does it still make sense in a complex and unstable world of constant change? Do we want to live in a system obsessed with stability meaning that laws should endure while reality changes? Or in a system where stability stems from the consent of the governed, freely given by those who see and support laws which reflect the current reality? And what happens when the reality is so uncertain that legislators cannot offer more than temporary rules? Can the disease of legal uncertainty be treated with controlled ‘doses’ of its own venom?
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