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. 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. Legal certainty represents a requirement that decisions 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 and

common law legal systems In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

. 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.

Relationship with the rule of law

The legal philosopher Gustav Radbruch regarded legal certainty, justice and purposiveness as the three fundamental pillars of law. Today legal certainty is internationally recognised as a central requirement for the

rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...

. According to the

Organisation for Economic Co-operation and Development The Organisation for Economic Co-operation and Development (OECD; french: Organisation de coopération et de développement économiques, ''OCDE'') is an intergovernmental organisation with 38 member countries, founded in 1961 to stimulate ...

(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 () is the capital and, with around 183,000 inhabitants, largest city of the German state of Brandenburg. It is part of the Berlin/Brandenburg Metropolitan Region. Potsdam sits on the River Havel, a tributary of the Elbe, downstream of ...

in 2007, the G8 committed to the rule of law as a core principle entailing adherence to the principle of legal certainty. 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 retroactivity of laws and decisions must be limited * legitimate interests and expectations must be protected.

Europe

Most European nations regard legal certainty as a fundamental quality of the legal system and a guiding requirement for the

, although they have differing meanings of the term. The concept can be traced through

English common law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

in that system's recognition that legal certainty requires that laws be made such that people can comply with them. It is also recognised in all European civil legal systems. Legal certainty is recognised as one of the general principles of

European Union law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...

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 concept of legal certainty is recognised by the

European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...

General principle of European Union law

The concept of legal certainty has been recognised as one of the general principles of European Union law by the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...

since the 1960s. It is an important general principle of international law and

public law Public law is the part of law that governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct ...

, 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

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'' the European Court of Justice held that

European Council The European Council (informally EUCO) is a collegiate body that defines the overall political direction and priorities of the European Union. It is composed of the heads of state or government of the EU member states, the President of the ...

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 The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a pers ...

, which has its roots in the principles of legal certainty and

good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...

, 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''. 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''. The general principle of legal certainty is particularly stringently applied when European Union law imposes financial burdens on private parties.

United States

In United States law the principle of legal certainty is phrased as fair warning and the void for vagueness principle. However, in the '' Calder v. Bull'' case it was established that in the U.S. the prohibition of '' ex post facto'' laws applies only to criminal cases, not to civil law.

References

{{DEFAULTSORT:Legal Certainty Legal doctrines and principles

Relationship with the rule of law

Europe

General principle of European Union law

United States

Further reading

References