Legal certainty
Encyclopedia
Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law
.
Legal certainty is an established legal concept both in the civil law legal systems
and common law legal systems. In the civil law tradition, legal certainty is defined in terms of maximum predictability of officials' behaviour. In the common law tradition, legal certainty is often explained in terms of citizens' ability to organise their affairs in such a way that does not break the law. In both legal traditions, legal certainty is regarded as grounding value for the legality of legislative and administrative measures taken by public authorities.
regarded legal certainty, justice and policy as the three fundamental pillars of law
. Today legal certainty is internationally recognised as a central requirement for the rule of law
. According to the Organisation for Economic Cooperation and Development[ (OECD) the concept of the rule of law "first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability." At the G8 Foreign Ministers' Meeting in Potsdam
in 2007, the G8 committed to the rule of law as a core principle entailing adherence to the principle of legal certainty.
. The concept can be traced through English common law and is recognised in all European legal systems. The concept is recognised in Germany as Rechtssicherheit, in France as securite juridique, in Spain as seguridad juridica, in Italy as certezza del diritto, in the Benelux countries as rechtszekerheid, in Sweden as rattssakerhet, in Poland as do obowiazujacego prawa, and in Finland as oikeusvarmuuden periaate. Legal certainty is now recognised as one of the general principles of European community law and "requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail". The principle of legal certainty, and as such the rule of law, requires that:
by the European Court of Justice
since the 1960s. It is an important general principle of international law and public law
, which predates European Union law. As a general principle in European Union law, it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law.
In European Union law
the general principle of legal certainty prohibits Ex post facto laws
, i.e. laws should not take effect before they are published. The general principle also requires that sufficient information must be made public to enable parties to know what the law is and comply with it. For example in Opel Austria v Council [1997] ECR II-39 Case T-115/94 The European Court of Justice held that European Council
Regulation did not come into effect until it had been published. Opel had brought the action on the basis that the Regulation in question violated the principle of legal certainty, because it legally came into effect before it had been notified and the regulation published. The doctrine of legitimate expectation
, which has its roots in the principles of legal certainty and good faith
, is also a central element of the general principle of legal certainty in European Union law. The legitimate expectation doctrine holds that "those who act in good faith on the basis of law as it is, or seems to be, should not be frustrated in their expectations." This means that a European Union institution, once it has induced a party to take a particular course of action, must not renege on its earlier position if doing so would cause that party to suffer loss. The European Court of Justice has considered the legitimate expectation doctrine in cases where violation of the general principle of legal certainty was alleged in numerous cases involving agricultural policy and European Council regulations, with the leading case being Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 Case 120/86. The misuse of power test is another significant element of the general principle of legal certainty in European Union law. It holds that a lawful power must not be exercised for any other purpose than that for which it was conferred. According to the misuse of power test a decision by a European Union institution is only a misuse of power if "it appears, on the basis of objective, relevant and consistent evidence, to have been adopted with the exclusive or main purpose of achieving any end other than those stated." A rare instance where the European Court of Justice has held that a European Union institution has misused its powers, and therefore violated the general principle of legal uncertainty, is Giuffrida v Commission [1976] ECR 1395 Case 105/75. The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties.
.
and the void for vagueness
principle.
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
.
Definition
Legal certainty is provided by the legal system to those subject to the law. As such the legal system needs to permit those subject to the law to regulate their conduct with certainty and to protect those subject to the law from arbitrary use of state power. As such legal certainty entails a requirement for decisions to be made according to legal rules, i.e. be lawful. The concept of legal certainty may be strongly linked to that of individual autonomy in national jurisprudence. The degree to which the concept of legal certainty is incorporated into law varies depending on national jurisprudence. However, legal certainty frequently serves as the central principle for the development of legal methods by which law is made, interpreted and applied.Legal certainty is an established legal concept both in the civil law legal systems
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and common law legal systems. In the civil law tradition, legal certainty is defined in terms of maximum predictability of officials' behaviour. In the common law tradition, legal certainty is often explained in terms of citizens' ability to organise their affairs in such a way that does not break the law. In both legal traditions, legal certainty is regarded as grounding value for the legality of legislative and administrative measures taken by public authorities.
Rule of law
The legal philosopher Gustav RadbruchGustav Radbruch
Gustav Radbruch was a German legal scholar and politician. He served as Minister of Justice of the German Empire during the early Weimar period. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century.-Life:Born at Lübeck, Radbruch studied law in Munich,...
regarded legal certainty, justice and policy as the three fundamental pillars of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Today legal certainty is internationally recognised as a central requirement for the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. According to the Organisation for Economic Cooperation and Development[ (OECD) the concept of the rule of law "first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability." At the G8 Foreign Ministers' Meeting in Potsdam
Potsdam
Potsdam is the capital city of the German federal state of Brandenburg and part of the Berlin/Brandenburg Metropolitan Region. It is situated on the River Havel, southwest of Berlin city centre....
in 2007, the G8 committed to the rule of law as a core principle entailing adherence to the principle of legal certainty.
Europe
European nations regard legal certainty as a fundamental quality of the legal system and a guiding requirement for the rule of lawRule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. The concept can be traced through English common law and is recognised in all European legal systems. The concept is recognised in Germany as Rechtssicherheit, in France as securite juridique, in Spain as seguridad juridica, in Italy as certezza del diritto, in the Benelux countries as rechtszekerheid, in Sweden as rattssakerhet, in Poland as do obowiazujacego prawa, and in Finland as oikeusvarmuuden periaate. Legal certainty is now recognised as one of the general principles of European community law and "requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail". The principle of legal certainty, and as such the rule of law, requires that:
- laws and decisions must be made public
- laws and decisions must be definite and clear
- the decisions of courts must be regarded as binding
- the retroactivityRetroactivityRetroactivity in law is the application of a given norm to events that took place or began to produce legal effects, before the law was approved...
of laws and decisions must be limited - legitimate interests and expectations must be protected.
General principle of European Union law
The concept of legal certainty has been recognised as one of the general principles of European Union lawGeneral principles of European Union law
The general principles of European Union law are general principles of law which European Union judges apply when determine the lawfulness of legislative and administrative measures within the European Union. General principles of European Union law may derive from common legal principles in...
by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
since the 1960s. It is an important general principle of international law and public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
, which predates European Union law. As a general principle in European Union law, it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, especially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law.
In European Union law
European Union law
European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
the general principle of legal certainty prohibits Ex post facto laws
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
, i.e. laws should not take effect before they are published. The general principle also requires that sufficient information must be made public to enable parties to know what the law is and comply with it. For example in Opel Austria v Council [1997] ECR II-39 Case T-115/94 The European Court of Justice held that European Council
European Council
The European Council is an institution of the European Union. It comprises the heads of state or government of the EU member states, along with the President of the European Commission and the President of the European Council, currently Herman Van Rompuy...
Regulation did not come into effect until it had been published. Opel had brought the action on the basis that the Regulation in question violated the principle of legal certainty, because it legally came into effect before it had been notified and the regulation published. The doctrine of legitimate expectation
Legitimate expectation
In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a...
, which has its roots in the principles of legal certainty and good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
, is also a central element of the general principle of legal certainty in European Union law. The legitimate expectation doctrine holds that "those who act in good faith on the basis of law as it is, or seems to be, should not be frustrated in their expectations." This means that a European Union institution, once it has induced a party to take a particular course of action, must not renege on its earlier position if doing so would cause that party to suffer loss. The European Court of Justice has considered the legitimate expectation doctrine in cases where violation of the general principle of legal certainty was alleged in numerous cases involving agricultural policy and European Council regulations, with the leading case being Mulder v Minister van Landbouw en Visserij [1988] ECR 2321 Case 120/86. The misuse of power test is another significant element of the general principle of legal certainty in European Union law. It holds that a lawful power must not be exercised for any other purpose than that for which it was conferred. According to the misuse of power test a decision by a European Union institution is only a misuse of power if "it appears, on the basis of objective, relevant and consistent evidence, to have been adopted with the exclusive or main purpose of achieving any end other than those stated." A rare instance where the European Court of Justice has held that a European Union institution has misused its powers, and therefore violated the general principle of legal uncertainty, is Giuffrida v Commission [1976] ECR 1395 Case 105/75. The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties.
European human rights law
The concept of legal certainty is recognised by the European Court of Human RightsEuropean Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
.
US
In US law the principle of legal certainty is phrased as fair warningFair Warning
Fair Warning is the fourth studio album by American hard rock band Van Halen. Released in 1981, it sold more than two million copies, but was still the band's slowest-selling album of the David Lee Roth era...
and the void for vagueness
Void for vagueness
Void for vagueness is a legal concept in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague...
principle.