University of Transnational Business Law

Legal Certainty

by Juha Raitio
Contents
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   1 Juristic Problem
   2 Discussion: The Expectation of Legal Certainty
   3 Alternative Philosophical Answers – Threefold Conception of Legal Certainty
   4 Related Entries
   5 Footnotes

Juristic Problem

The interpretation of legal certainty or rule of law varies depending on the legal culture and the School of law in question. For example, there are differences between Analytical School of Law and the Critical Legal Studies (CLS) in this respect.[1] Therefore this short entry may illustrate merely a conception, not a concept, of legal certainty.[2] The definition and scope of application of legal certainty is controversial and it is easily mixed up with the concept of ‘rule of law’.

The avoidance of arbitrariness has traditionally been regarded as a basic norm for the judge.[3] The formal aspect of legal certainty refers to the requirement of eliminating randomness from the legal decision-making activity, which intertwines with the concept of predictability. The judicial decision can not be based on coin-flipping. One cannot argue that the outcome of the case is predictable, because by flipping a coin the probability of acquittal is 1:2.[4] The reliance on formal legal certainty, principle of legality and rule of law are often related to an attempt to safeguard overriding public interests. The substantive aspect of legal certainty requires in turn that the solutions of the judicial decision-making must also be substantially right, which can be called the demand of acceptability.[5] It has much in common with the requirements of proportionality. Thus it usually promotes rights of an individual in the circumstances of a single case. However, the principle of legal certainty has often been used in a formal sense implying the idea of the predictability of legal decisions.[6]

As an underlying principle of law legal certainty cannot be formulated in a specific way, because the circumstances to which it is supposed to be applied are difficult to determine. For example, legal certainty can be related to various circumstances, whereas the more specific principle of equal pay applies to the relationship between an employer and employee. Principles are often intertwined and suitable for ‘weighing up and balancing’, which in turn implies that principles do not necessarily have any specific scope of application.[7] However, one can determine the typical situations in which legal certainty has been applied in practice.

The principle of legal certainty refers to the non-retroactivity and the protection of legitimate expectations in particular. Material retroactivity means the application of a legislative measure to the effects in the future of a situation which has arisen under a former law. True retroactivity in turn means the application of a legislative measure to a situation which is fully completed. True retroactivity is also at hand where the date of entry into force of legislation precedes the date of publication.  The protection of legitimate expectations must be based on legislation. However, this is not always necessary, but at least it requires that an individual must be able to point either to a bargain of some form which has been entered into between the individual and the authorities, or to a course of conduct or a ´specific assurance’ on the part of the authorities at hand. The principle of legal certainty comes to the fore in the context of the revocation of unlawful acts as well. For example, when the legislator has passed an illegal act and then seeks to revoke it, an unreasonable delay by the administration can operate as a bar to the revocation of an unlawful administrative act.[8] These examples show that legal certainty applies to the legislation, execution as well as judicial decision-making. The theoretical problem arises when one is trying to analyse, for example, whether legal certainty applies more to the work of a judiciary than a legislator.

Peczenik has listed the following requirements of the decision-making in which legal certainty (rättssäkerhet)  can be related especially in Sweden:

-the principle of legality, (the legal decisions must be based on law);

-the legal texts must be clear and precise;

-the prohibition of retroactive penal or criminal law;

-the prohibition to use analogy in applying sanctions in penal law;

-procecutors must give proper reasons for their charges;

-the principle of objectivity, (similar cases must be treated and decided in a similar way);

-the prohibition of arbitrariness in judicial decision-making;

-a requirement that the facts of the case be properly described;

-an obligation to justify judicial decisions;

-the right to be heard (rätt att yttra sig);

-the prohibition of misuse of powers;

-judicial review of administrative decisions as well as the judgments of the courts;

-the right to have access to a competent court;

-the right to get an instruction as to how to appeal to a higher court or tribunal (besvärshänvisnig);

-the possibility of a public control of the decisions by official publications;

-decisions must be given in reasonable time;

-the principle of openness in decision-making (offentlighetsprincipen);

-oral proceedings;

-the limited number of the courts with a special jurisdiction, e.g. ad hoc - courts; and

-the independence of the courts and administrative tribunals in relation to other state organs.[9]

This list shows how in the circles of Analytical School of Law the concept of legal certainty has often been used in the framework of judicial decision-making. Then the focus has been on the interpretation and coherent argumentation, whereas rule of law has had a somewhat broader scope of application.[10]

In Anglo-American literature the concept of rule of law has been defined and elaborated more often than legal certainty. According to Raz, the basic idea of the rule of law is literally what the expression says: the rule of the law, which means that people should obey the law and be ruled by it. He has pointed out that in practice the rule of law has been interpreted in the narrower sense that the government shall be ruled by the law and subject to it.[11] In order to avoid confusion caused by vague definitions, Raz has specified the requirements of the rule of law as follows:

1. All laws should be prospective, open and clear.

2. Laws should be relatively stable.

3. The making of particular laws (particular legal orders) should be guided by open, stable, clear, and general rules.

4. The independence of the judiciary must be guaranteed.

5. The principles of natural justice must be guaranteed.

6. The courts should have review powers over the implementation of the other principles.

7. The courts should be easily accessible.

8. The discretion of the crime-preventing agencies should not be allowed to pervert the law.[12]

The list is illustrative only and the listed features must be interpreted in the light of the basic idea of the rule of law. The list includes the emphasis of separation of powers and the demand for the independence of courts. Like Finnis, one could argue that rule of law also requires that rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules. At the same time those people who have authority to make, administer and apply the rules in an official capacity must be accountable for their compliance with rules applicable to their performance.[13]
Discussion: The Expectation of Legal Certainty

The expectation of legal certainty sensu stricto[14] means that every citizen has the right to expect legal protection.[15] Furthermore, the courts’ obligation to give legal protection is such that the citizens legal problem is dealt with in accordance with the law. The courts must also make a justified legal decision in the case at hand.[16] Court’s refusal to make a decision (denegatio iustitiae) is not morally acceptable, because people expect access to justice.[17] There might be exceptional reasons, based for example on procedural law, when the court decides not to give a judgment, but still the courts have in principle a legal obligation to reach a decision irrespective of the difficulties relating to the decision-making. Uncertainty in judicial decision-making should not be evaded by merely referring to the authority of the court. Peczenik lists three conditions for legal decisions:

1. The decision is supported by a statute and/or another source of law;

2. In hard cases the decision is also supported by moral value statements; and

3. One can reconstruct legal decision-making as a logically correct process of reasoning.[18]

The expectation of legal certainty sensu largo contains two substantial elements: the demands that arbitrariness must be avoided (formal legal certainty) and that the decision must be proper and thus acceptable (substantive legal certainty).[19] Formal legal certainty can be defended by stating that courts have to behave so that the citizens are able to plan their activities on a rational basis, which in turn is a necessary condition for the continuity of the society.[20] The need to eliminate randomness from the judicial decision-making requires in turn rational legal reasoning.[21] The minimum precondition for such reasoning is that the courts support their decisions with legal norms. This precondition is connected with the principle of legality, which has significance especially in criminal and penal law. On the other hand, the courts must use proper interpretation methods to adapt legal norms to moral or teleological arguments and to the facts of the case.[22] The expectation of legal certainty requires also that the decision as an outcome of the rational legal reasoning is reasonable. Thus the substantive aspect of legal certainty means that the judicial interpretation must be in accordance with the law and it has to meet certain minimum distinctive criteria of equity and justice.[23] This often leads to the weighing and balancing the principle of proportionality in relation to other principles and policies. However, there seems to be a tendency to criticize the twofold concept of legal certainty, especially among the legal positivists, who would like to keep issues of law and morality separate.[24]

The requirement of substantive legal certainty can also be linked to views of democracy. Peczenik has argued that democracy requires legal certainty which in turn presupposes a certain degree of respect for democratic values.[25] Legal decision-making ought to be loyal to the democratically-elected legislature.  The requirement of openness makes the external control of the decision-making possible. Decisions must be justified in such a way that considerations relating to moral or social values are revealed.[26] Additionally, the requirement of openness binds the legislator as well.[27] To sum up, the formal legal certainty can be related to the inner logic of judicial decision-making, whereas substantive legal certainty relates to the content of the decision.
Alternative Philosophical Answers – Threefold Conception of Legal Certainty

The question of acceptability can be linked with the issue of the validity of law.[28] Wróblewski’s three conceptions of validity – systemic validity, factual validity and axiological validity – are important for defining the concept of legal certainty.[29] Systemic validity can be defined with reference to a norm’s formal source of origin, factual validity with reference to the operative “law in action” and axiological validity with reference to a norm’s acceptability in light of social and moral values. Siltala prefers the terms positivist, sociological and axiological (naturalist) validity, with reference to the basic postulates of Legal Positivism, Legal Realism and Natural Law Theory, respectively.[30]

The point of departure is based on Aarnio’s and Peczenik’s definition on legal certainty. In judicial decision-making the formal aspect and substantive aspect of legal certainty are not necessarily equal in importance. The validity conceptions, i.e. systemic, factual and axiological, are not equally significant either. The weighing of different validity concepts or aspects of legal certainty depends on the view-point of law in general. In Wróblewski’s theory the systemic validity is the basic model of legal validity for the statutory systems of law and that the notions of factual and axiological validity are applicable only exceptionally.[31]

If the Wróblewskian conceptions of validity[32] were employed in defining the conception of legal certainty, the factual validity of law might be perceived as the demand of efficiency, or efficacy,  in law. The term ‘operative law’ refers to the law constituted by final judicial decisions. The most radical version of the concept of factual validity emphasizes the idea that “law in action” is the real law, and is opposed to “law in books”: real law is that law which is applied as “law”.[33]  Thus one would have three elements in legal certainty:

1. Formal legal certainty, (predictability);

2. Factual legal certainty; (stability, continuity) and

3. Substantive legal certainty, (acceptability)[34]

Factual legal certainty might be perceived as intertwining with formal and substantive legal certainty. In the case of desuetudo[35] obsolete laws are not considered to be in force any more because they have not been applied by the judiciary for a long time, although they are formally in force. If a court applied unexpectedly such an obsolete law, it would be against factual legal certainty. Such an application may infringe the protection of legitimate expectations (Vertrauenschutz). On the other hand, one could point out that the court’s behaviour was unpredictable and thus against formal legal certainty. This idea is not tenable, however, because by definition formal legal certainty as a requirement of predictability is fulfilled, if the formally valid legal rules are applied in the judicial decision-making. On the other hand, one might also point out that legal certainty was breached because of the material reasons related to the conception of substantive legal certainty. This latter counter-argument to factual legal certainty is much more convincing because one might not consider the application of obsolete laws acceptable in the light of the social and moral norms of the society. The conception of factual legal certainty remains a mixture of formal and substantive legal certainty and thus it is situated between the two extremes.

Factual legal certainty might be considered as a logical derivation of Wróblewski’s threefold conception of validity. Since the administrative practice is easy to alter and not as public as legislation, one might argue that it is not predictable and clear enough to be employed in support of the argument of factual legal certainty. The case law concerning the English estoppel doctrine and the protection of legitimate expectation in EC law prove that there is reason to employ such a term with respect to legal certainty. To be more precise, factual legal certainty relates to the certain conduct of an administrative authority on which the protection of legitimate expectations can be based rather than the vague and general concept of administrative practice.[36]

To sum up, the principle of legal certainty can not be expressed by definitions alone, because it is an underlying general principle of law. However, one might conclude that the principle of legal certainty relates to the principle of non-retroactivity and the protection of legitimate expectations in particular, but more profoundly it can be related to the conceptual scale for weighing up and balancing between predictability and acceptability, between formal justice and material fairness. The idea of legal certainty as a scale from predictability to acceptability is not merely a question of legal theory, but it is also a question of legal politics.
Related Entries

In this encyclopedia there are many entries, which I think can be related to legal certainty, such as:

Alexy, Robert: Statutory Interpretation

Atienza, Manuel: Argumentation in the Law

Bayon, Juan Carlos: Binding Force of the Law

Frändberg, Åke: Rechtstaat

Himma, Kenneth: Legal Positivism

Jansen, Nils: Weighing and Balancing in the Law

Kreuzbauer, Günther: Legal Rules/Moral Rules

Manero, Juan Ruiz: Rules and Principles

Morawski, Lech: Methods of Statutory Interpretation

Nergelius, Joakim: Principles and Rules in European Law

Peczenik, Aleksander: Coherence and Justice

Peczenik, Aleksander: Supervenient Object in the Law – Non-deductive Steps in Legal Reasoning

Pincione, Guido: Rule of Law - Philosophical Perspectives

Urbina, Sebastian: Legal Positivism: Critical Assessment and Epistemological Reflexions

Viola, Francesco: Positive Law and Natural Law

Wright, Richard: Rational and Reasonable

Perhaps the most obvious and important link is between the principle of legal certainty and rule of law/Rechtstaat. The rule of law sets conditions for the proper exercise of legislative power, for example banning or restricting retrospection, and stipulating reasonable generality, clarity and constancy in the law. It requires that a legal system must exhibit a relatively high degree of coherence as a normative system.

There are lots of articles or books, in which legal certainty has been analysed from philosophical perspective. The following list thus merely scratches the surface.

-Aarnio, A.: The Rational as Reasonable, A Treatise on Legal Justification, Dordrecht/Boston/Lancaster/Tokyo: D.Reidel Publishing Company, 1987.

-Barendrecht, J. M.: Recht als model  van rechtvaardigheid, Deventer:Kluwer, 1992.

-Corsale, M.: Certezza del diritto e crisi di legittimità, Milano: A. Giuffré, 1979.

-Crones, C.: Selbstbindungen der Verwaltung im Europäischen Gemeinschaftsrecht, Baden-Baden: Nomes, 1997.

-Henrichsen, C.: Retssikkerhed og moderne forvaltning: en retspolitisk studie i samspillet mellem stat, forvaltning og borger, Københavns universitet, 1997.

-Fuller, L. L..: The Morality of Law, Revised edition, New Haven and London: Yale University Press, 1969.

-Gustafsson, H.: Rättens polyvalens: en rättsvetenskaplig studie av rättigheter och rättssäkerhet, Lunds Universitet, 2002.

-Peczenik, A.: On Law and Reason, Dordrecht/ Boston/ London: Kluwer Academic Publishers, 1989.

-Peczenik, A.: Vad är rätt?, Om demokrati, rättssäkerhet, etik och juridisk argumentation, Stockholm: Nordstedts Juridik AB, Fritzes Förlag AB, 1995.

-Raitio, J.: The Principle of Legal Certainty in EC Law, Dordrecht, Boston, London: Kluwer Academic Publishers, 2003.

-Radbruch, G.: Rechtsphilosophie, Stuttgart:K.F.Koehler, 1950.

-Scholz, Franz: Die Rechtsicherheit, Berlin: W. de Gruyter, 1955.
Footnotes

[1] See about CLS e.g. Kennedy, Duncan: A Critique of Adjudication, Second Edition, Cambridge: Harvard University Press, 1998, pp. 1-376, esp. p. 5, (Kennedy 1998) or about Analytical School of Law e.g. Aarnio, Aulis: Reason and Authority, A Treatise on the Dynamic Paradigm of Legal Dogmatics, Aldershot: Ashgate/Dartmouth, 1997, pp. 1-288, (Aarnio 1997).  In CLS the focus is not that much on judicial argumentation and deduction, but it tries to construct a kind of descriptive social theory. The perspective of CLS (e.g. Michel Foucault) is “critical”, both in a sense of attacking existing social and cultural arrangements and in the sense of internal critique of text and practices.

[2] See Dworkin, Ronald: Taking Rights Seriously, With a New Appendix, a Response to Critics, Cambridge, Massachusetts: Harvard University Press, 1978, pp. 134-136 about the concepts and conceptions.

[3] See Aarnio, Aulis: The Rational as Reasonable, A Treatise on Legal Justification, Dordrecht/Boston/Lancaster/Tokyo: D.Reidel Publishing Company, 1987, p. 4, (Aarnio 1987) and Brusiin, Otto: Tuomarin harkinta normin puuttuessa, Vammala: Suomalaisen lakimiesten yhdistyksen julkaisuja N:o 14, 1938, pp. 95-98.

[4] See Bix, Brian: Law, Language and Legal Determinacy, Oxford, New York: Oxford University Press, 1995, p. 106 and footnote 75.

[5] See Aarnio 1987, pp. 3-8, 44 or Aarnio 1997, pp. 189-193, Peczenik, Aleksander: On Law and Reason, Dordrecht/ Boston/ London: Kluwer Academic Publishers, 1989, pp. 31-35, (Peczenik 1989) or Peczenik, Alexander: Vad är rätt?, Om demokrati, rättssäkerhet, etik och juridisk argumentation, Stockholm: Nordstedts Juridik AB, Fritzes Förlag AB, 1995, p. 89-100, (Peczenik 1995).

[6] See Peczenik 1989, p. 31. He refers to Frändberg, Åke: Some Reflections of Legal Security, in ”Philosophical Essays Dedicated to Lennart Åqvist, Uppsala: Philos. Society, 1982, p. 41, Hayek, Friedrich A: The Road to Serfdom, Chicago: Chicago University Press, 1944, pp. 72 ff. or Opalek, Kazimierz: The Rule of Law and Natural Law, in ”Festskrift till Olivecrona, Stockholm: Norstedts Juridik AB, 1964, pp. 497 ff. in this context.

[7] See Raitio, Juha: The Principle of Legal Certainty in EC Law, Dordrecht, Boston, London: Kluwer Academic Publishers, 2003, pp. 364-368, (Raitio 2003).

[8] ibid, pp. 187-263.

[9] See Peczenik 1995, p. 89.

[10] See e.g. Raitio 2003, pp. 134-146 or Kennedy 1998, pp.  13-14 and 73-75.

[11] See Raz, p. 212.

[12] ibid., pp. 214-219.

[13] See Finnis, John: Natural Law and Natural Rights, Oxford. Clarendon Press, 1980, pp. 270-271.

[14] On the terms sensu stricto, sensu largo and sensu largissimo, see MacCormick, D. Neil- Summers,Robert S.(eds.): Interpreting Statutes, A Comparative Study, Aldershot: Dartmouth,1991, pp. 12-13, and Wróblewski, Jerzy: The Judicial Application of Law, ed. by Zenon Bankowski and Neil MacCormick, Law and Philosophy Library, vol. 15, Dordrecht/Boston/London: Kluwer Academic Publishers, 1992, pp. 87-88, (Wróblewski 1992).

[15] See Aarnio 1987, p. 3

[16] See Aarnio 1997, pp. 189-190 and Peczenik 1989, pp. 29-31.

[17] See Peczenik 1989, p. 34.

[18] ibid., pp. 29-31.

[19] See Aarnio 1987, p. 3, Aarnio 1997, p. 191, Peczenik 1989, p. 32 and Peczenik 1995, pp. 97-98. Peczenik has illustrated the importance of substantive legal certainty (materiell rättssäkerhet) by referring to the “Hitler argument”. Accordingly, the laws and decisions against the jews were predictable, but they were not acceptable in the light of generally agreed moral norms. Therefore the requirements of legal certainty were not fulfilled.

[20] See Aarnio 1987, p. 4 and Peczenik 1995, p. 90.

[21] See Aarnio 1997, p. 191.

[22] See Peczenik 1989, p. 34.

[23] See Aarnio 1997, pp. 191-192.

[24] See Asp, Petter: EG:s Sanktionrätt, ett Straffrättsligt Perspektiv, Uppsala: Iustus Förlag, 1998, pp. 31-37, esp. p. 33. Asp maintains that law can never give a final answer to what we as human beings should do in a situation described by Peczenic’s Hitler argument, but it eventually gives an answer to a judge what he/she is obliged to do.

[25] See Peczenik 1989, p. 40.

[26] See Aarnio 1997, p. 193.  

[27] See Fuller, Lon L.: The Morality of Law, Revised edition, New Haven and London: Yale University Press, 1969, p. 157-159, in which he describes how Nazis avoided a public disclosure of practices, which they knew would not be approved by other European countries. Some of these practices were not based on law, since formal and published enactment would have caused criticism.  

[28] See e.g. Aarnio 1987, pp. 33-38 or Bengoetxea, Joxerramon: The Legal Reasoning of the European Court of Justice, Towards a European Jurisprudence, Oxford, New York: Clarendon Press, 1993, pp. 56-57.

[29] See Wróblewski 1992, pp. 75-83.

[30] See Siltala, Raimo: A Theory of Precedent, From Analytical Positivism to a Post-Analytical Philosophy of Law, Oxford - Portland Oregon: Hart Publishing, 2000, p. 182, (Siltala 2000).

[31] See Wróblewski 1992, p. 76.

[32] ibid., pp. 75-83.

[33] ibid., p. 84 and comments in Pöyhönen, Juha: Sopimusoikeuden järjestelmä ja sopimusten sovittelu, Suomalaisen lakimiesyhdistyksen julkaisuja, A:179, Vammala, 1988, pp. 29-31.

[34] See Tuori, Kaarlo: Interests and the Legitimacy of Law, in Aulis Aarnio, Kauko Pietilä, Jyrki Uusitalo (eds.): Interests, Morality and the Law, Tampere: Research Institute for Social Sciences, University of Tampere, Publications 14, 1996, pp. 94-97. In addition to the formal (systemic) and factual validity Tuori has employed the concept of rationality instead of acceptability and he has referred to Habermas’ conceptual framework of three aspects of practical reason, namely pragmatic, ethical and moral.

[35] See Klami, Hannu Tapani: Föreläsningar över juridikens metodlära, Andra upplagan, Uppsala: Iustus Förlag, 1989, p. 62.

[36] See Raitio 2003, pp. 372-376.