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Legal Certainty and the Rechtsstaat or the Rule of Law

Legal certainty is a recent principle which can be derived from the rule of law or, in civil law countries, the Rechtsstaat.[1] In Germany, legal certainty and the Rechtsstaatlichkeit have been conceived as two sides of modern statehood.[2] Throughout the last century, legal certainty has been regarded as a shield against the arbitrariness of public administration.[3] However, there is space for concretization: the rule of law and legal certainty constantly take different forms in concrete situations but their core of predictability remains intangible.[4] In this section, some reflections on this central idea are made in order to understand whether sunset clauses and experimental legislation are compatible with a dynamic concept of legal certainty.

Uncertainty is, in principle, an enemy of the rule of law, particularly nowadays. According to Justice Scalia ‘as laws have become more numerous ... we can less and less afford protracted uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it, “reckon- ability” is a needful characteristic of any law worthy of the name’.[5] For Scalia, a rule of law is a ‘law of rules’: predictable rules and not discretionary standards. Experimental legislation implies, however, the formulation of these standards (see Chapter 3) often in the form of goals and the need to treat two groups differently. ‘People may not have the patience to understand the nuances of the differences between cases in a discretionary regime’, Scalia argues. Does this mean that the rule of law cannot be compatible with a ‘law of experimental rules’? Would people be better off with ‘bad rules’?

In a comment on Scalia’s ‘rule of law’, David Strauss argues that ‘the best rules ... are the product of an evolutionary process of trial and error, and they continue to evolve after they have been announced’.[6] What Justice Scalia appears to refuse is that this evolution should be operated by courts, rather than by Congress. In Carden v. Arkoma Associates, judging a case involving the application of a rule more than 150 years old, Justice Scalia applied the rule, justifying this by stating that ‘this decision was not the failure to accommodate the changing realities . but [involves] leaving that to the people’s elected representatives’.[7]

Due to the constant changes in society, economy and technology, ‘law cannot stand still’ and it is up to the legislator to ensure the incorporation of change in the legal order. For the sake of legal certainty, the assimilation of legal change should be clearly justified and its integration should involve as little detriment to other values as possible. This is the legislator’s task, so the rule of law could, in theory, be a ‘law of sunset and experimental rules’, as long as both offer sufficient certainty. Laws are instruments that offer determinability as to the citizens’ rights and duties in concreto, but this certainty can only endure if laws remain permeable to future possibilities of change.[8] However, the incorporation of these legal changes implies a strict observance of the principle of legal certainty, namely, by granting enough time between the publication of the law and the date on which it comes into force, enacting transitory regulations and, when appropriate, awarding a proportional compensation for possible damages.[9]

Legal certainty should not be a goal in itself. Legal certainty seeks fairness in the application of law, which also means that it accepts that a better law should replace an old one. The rule of law implies the existence of fixed and prospective rules, in other words, rules that guide individuals and governmental conduct so that planning and foreseeability are possible. Temporary rules as such do not seem to be contrary to the principle of legal certainty and the Rechtsstaat or the rule of law. Should these temporary rules be disadvantageous or in any way onerous for citizens, additional caution must be taken to guarantee that citizens are not ‘caught off guard’.

Law should have a minimum of stability but reducing law either to a state of ‘absolute stability’ or to an ‘instrument of change’ seems too simplistic.[10] Some level of legal stability is desired since a high mutability of law could endanger the planning benefits that flow from the rule of law.[11] Law has an ambivalent relationship with time: the rule of law must have enough stability and be set ‘beyond the ravages of time’ but, in order for law to rule, ‘it must be responsive and indeterminate, capable of extending to the infinite variety that confronts it’.[12] Briefly, the rule of law ‘must be saturated in temporality’, concludes Fitzpatrick. This core of stability does not change the fact that if law is meant to fulfil its function as a supreme instrument of social order, it has to respond to social change and adapt to it.[13] For example, while constitutional dispositions safeguarding the inalienable right to vote should be left unchanged, the regulation of the different forms of voting, like e-voting, should be frequently adapted to the evolution of technology.

As Hart describes, legal systems must find the middle ground between the need for certain rules, which can be safely applied by private individuals, and ‘the need to leave open for later settlements by an informed, official choice, issues which can only be properly appreciated and settled when they arise in a concrete case’.[14] This shows the difference between evolving from general and abstract legal statements, which are meant to last; and specific rulings which, as Stefano Bertea explains, ‘are bound to remain out of reach [because] we will not know them in advance even within legal settings shaped by the principle of legal certainty’.[15]

Rigid laws and excessive normative certainty can result in uncertainty at the concrete level; therefore, a better alternative includes providing law with a reasonable amount of flexibility that guarantees that laws can adapt, in concrete, to changing circumstances, while still guaranteeing, in abstract, the predictability and foreseeability of law. As Patricia Popelier underlines, these are exactly the dimensions which might call for adjustments and provide room for innovation.[16] Finding the balance between the required flexibility for innovation and legal certainty was precisely one of the challenges discussed in Chapter 1.

In conclusion, the principle of legal certainty cannot be reduced to imperatives of mere continuity or stability of law; rather, it is a multidimensional concept that gains its significance when perceived in concrete. This multidimensional concept of legal certainty appears to leave the door open for the enactment of flexible legislative instruments that respond to changing circumstances and allow progressive and experimental legal innovations to enter the legal order. The following sections examine the relationship between the principle of legal certainty and sunset clauses and experimental legislation: are these legislative instruments and this principle ‘friends’ or ‘foes’?

  • [1] Popelier, Rechtszekerheid als beginsel van behoorlijke regelgeving, n. 8above, 35.
  • [2] Uwe Volkmann, ‘Sicherheit und Risiko als Probleme des Rechtsstaats’(2004) 14 Juristenzeitung 696.
  • [3] Patricia Popelier, ‘Five Paradoxes on Legal Certainty and the Lawmaker’(2008) II Legisprudence 53.
  • [4] Popelier, Rechtszekerheid als beginsel van behoorlijke regelgeving, n. 8above, 81-2.
  • [5] Antonin Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 Universityof Chicago Law Review 1175.
  • [6] David A. Strauss, ‘On the Origin of Rules (with Apologies to Darwin): AComment on Antonin Scalia’s the Rule of Law as a Law of Rules’ (2008) 75University of Chicago Law Review 997.
  • [7] Carden v. Arkoma Associates, 110 U.S. 1015, 1022 (1990).
  • [8] Popelier, Rechtszekerheid als beginsel van behoorlijke regelgeving, n. 8above, 115.
  • [9] Ibid. 116.
  • [10] Francois Ost, ‘L’instantane ou l’institue? L’institue ou l’instituant? LeDroit a-t-il pour vocation de durer?’ in F. Ost and M. Van Hoecke (eds), Temps etDroit (Bruylant, 1998) 14.
  • [11] Katie R. Eyer, ‘Administrative Adjudication and the Rule of Law’ (2008)60 Administrative Law Review 647, 666.
  • [12] Peter Fitzpatrick, ‘Law in the Antinomy of Time: A Miscellany’ inFrancois Ost and M. Van Hoecke (eds), Temps et Droit (Bruylant, 1998) 185.
  • [13] Wolfgang Gaston Friedman, Law in a Changing Society (University ofCalifornia Press, 1959) ix.
  • [14] Herbert Hart, The Concept of Law (Oxford University Press, 1961).
  • [15] Stefano Bertea, ‘Towards a New Paradigm of Legal Certainty’ (2008) IILegisprudence 25, 37.
  • [16] Popelier, ‘Five Paradoxes on Legal Certainty and the Lawmaker’, n. 23above, 53-4.
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