Certainty In Law

Instead of the usual apologetic treatment found in legal doctrine, linked to the determinacy, immutability or predictability of norms, this book treats legal certainty innovatively, holistically and in depth. Using a method at once analytical and functional, Professor Ávila examines the structural elements of legal certainty, from its definition and foundations to its various dimensions, normative forces and efficacies, citing a wealth of examples from case law to support each of the theses defended. No subject is more important and topical than legal certainty. Problems relating to lack of understanding, instability and unpredictability of law intensify day by day everywhere, in civil law and common law countries alike. Normative sources are increasingly diverse in origin (national, international, community) and multiple in nature (legal, contractual, jurisprudential). They change constantly, and present increasingly frequent problems of ambiguity and vagueness that significantly hinder their comprehension. This state of affairs, which to a greater or lesser extent is true of any legal order, justifies a return to the subject of legal certainty. In this book, essential questions are answered such as: Legal certainty in what sense? Certainty of what, for whom, in whose vision and by whom? When, to what extent, and to what end? “(...) it is probably the most comprehensive and systematic study ever produced on this subject using the analytical method.” (Riccardo Guastini, Professor of Jurisprudence, University of Genoa, Italy)

This book addresses issues concerning the shifting contemporary meaning of legal certainty. The book focuses on exploring the emerging tensions that exist between the demand for legal certainty and the challenges of regulating complex, late modern societies. The book is divided into two parts: the first part focusing on debates around legal certainty at the national level, with a primary emphasis on criminal law; and the second part focusing on debates at the transnational level, with a primary emphasis on the regulation of transnational commercial transactions. In the context of legal modernity, the principle of legal certainty—the idea that the law must be sufficiently clear to provide those subject to legal norms with the means to regulate their own conduct and to protect against the arbitrary use of public power—has operated as a foundational rule of law value. Even though it has not always been fully realized, legal certainty has functioned as a core value and aspiration that has structured normative debates throughout political modernity, both at a national and international level. In recent decades, however, legal certainty has come under increasing pressure from a number of competing demands that are made of contemporary law, in particular the demand that the law be more flexible and responsive to a social environment characterized by rapid social and technological change. The expectation that the law operates in new transnational contexts and regulates every widening sphere of social life has created a new degree of uncertainty, and this change raises difficult questions regarding both the possibility and desirability of legal certainty. This book compiles, in one edited volume, research from a range of substantive areas of civil and criminal law that shares a common interest in understanding the multi-layered challenges of defining legal certainty in a late modern society. The book will be of interest both to lawyers interested in understanding the transformation of core rule of law values in the context of contemporary social change and to political scientists and social theorists.

The intertwinement of EC law and national law may create unforeseeability in situations where EC law invades the national cases. This study contributes to the contemporary discussion, which wrestles with questions such as: What have been the visions and objectives for European integration in the last decades? How to describe European Union as a political entity and a legal system? What is the relationship between legal certainty, rule of law, various general principles and human rights?

The principle of legal certainty is of fundamental importance for law and society: it has been vital in stabilising normative expectations and in providing a framework for social interaction, as well as defining the scope of individual freedom and political power. Even though it has not always been fully realised, legal certainty has also functioned as a normative ideal that has structured legal debates, both at the national and transnational level. This book presents research from a range of substantive areas regarding the meaning, possibility and desirability of legal certainty in the context of a rapidly changing global society. It aims to address these issues by bringing together scholars from various jurisdictions in order to examine changes in the shifting meaning of legal certainty in a comparative and transnational context. In particular, the book explores some of the tensions that now exist between the conventional expectation of legal certainty and the various challenges associated with regulating highly complex, late modern economies and societies. The book will be of interest to lawyers concerned with understanding the transformation of core rule of law values in the context of contemporary social change, as well as to political scientists and social theorists.

This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put into practice in French and English law, using commercial real estate as a case study. Not only does this study identify the economic impact of the law in both jurisdictions, it also looks at the practitioners' functions in dealing with commercial real estate transactions. In other words, it analyzes the topical position of practitioners, such as the French notaires and the role of solicitors in England. Nowadays, the profession of notaires is confronted by numerous challenges. For instance, nationality requirement for its access has been ruled by the ECJ as contrary to the freedom of establishment and article 49 TFEU, and not justified by "the exercise of public authority." In this study, the authors argue that the actual nature and the quality of the work done by the practitioners should be considered, as well as financial cost and delays. They also argue that a liberalization of professions, such as civil law notaires, would have very little impact on the cost associated with doing business. As a matter of fact, both the English and the French mechanisms are very similar in their objectives and outcome even though they handle the same transaction differently because of the culturally different relevant angles. (Series: Ius Commune Europaeum, Vol. 147) Subject: Property Law, Commercial Real Estate Law]

The concept of "real legal certainty" provides a much-needed corrective to the general attention legal certainty currently receives, emphasizing relations between citizens, adding socio-legal insight, and providing a "view from below" Real legal certainty thus leads to more realistic insights on how to build state institutions. The concept was introduced by Leiden University's professor of law and governance in developing countries Jan Michiel Otto, and can be considered a central pillar of his work. In this volume, friends and colleagues of Otto engage with the concept of real legal certainty against the backdrop of an ever-increasing interest in legal certainty in policy-making and academia, providing a wide variety of examples of its relevance. Drawing on case material from all over the world, they show how real legal certainty can be understood in a bottom-up manner and how it is relevant for building state institutions. They also show how the concept can gain in relevance by taking non-state actors into account. In all, the volume is important reading for all whom share Otto's interest in translating law in the books and into law in action.