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Some realism about legal certainty in the globalization of the rule of law.

Article Excerpt
I. INTRODUCTION



II. LEGAL CERTAINTY IS THE INTERNATIONAL BASIS OF THE RULE OF LAW III. "WE ARE ALL REALISTS NOW" IS THE AMERICAN CREDO IV. LEGAL CERTAINTY AS LEITMOTIF FOR LEGAL METHODS A. Lawmaking B. Law Finding and Judicial Lawmaking C. Law Applying V. CONCLUSION: DEALING WITH EACH OTHER

I. INTRODUCTION

Legal certainty is a central tenet of the rule of law as understood around the world. (1) For example, the Foreign Ministers of the G8 (2) declared in their meeting at Potsdam in 2007 their nations' commitment to "the rule of law [as a] core principle[] on which we build our partnership and our efforts to promote lasting peace, security, democracy and human rights as well as sustainable development worldwide." (3) They stated that it is "imperative to adhere to the principle[] ... of legal certainty." (4)

While the United States is among the strongest proponents of the rule of law, (5) American jurists do not speak of legal certainty--at least, not anymore. (6) While the term "legal certainty" is English, it is not American English. (7) American academics who address certainty of law use another term, "legal indeterminacy"; (8) practicing lawyers by and large do not use either of these terms. (9) Both groups of jurists seem resigned to ubiquitous uncertainty. (10)

The Secretary General of the United Nations wisely counseled, "a common understanding of key concepts is essential." (11) Common efforts to build the rule of law have been "plagued" by "the failure of many policymakers to examine or fully understand the very concept of the 'rule of law.'" (12) How are we to build a partnership based on a concept on which we differ?

This Article seeks to facilitate the international discussion of legal certainty and the rule of law. It aims: (I) to make Americans aware that skepticism of legal certainty espoused by American academics is atypical; (II) to make non-Americans aware of American skepticism of legal certainty; and (III) to help Americans and non-Americans alike understand each other better so that they may more efficiently cooperate. (13)

II. LEGAL CERTAINTY IS THE INTERNATIONAL BASIS OF THE RULE OF LAW

While at its outer bounds the rule of law may be "an essentially contested concept," (14) at its core, it promises legal certainty. (15) According to a recent publication of the Organisation for Economic Cooperation and Development (OECD), "... the concept first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability." (16)

A legal system that provides legal certainty guides those subject to the law. (17) It permits those subject to the law to plan their lives with less uncertainty. (18) It protects those subject to the law from arbitrary use of state power. (19)

The centrality of legal certainty to the thinking of continental jurists is not well appreciated by American academics captivated by legal indeterminacy. (20) For the great German legal philosopher, Gustav Radbruch, legal certainty--along with justice and policy--was one of only three fundamental pillars of the very idea of law. (21) Radbruch's contemporary, Ludwig Bendix, colorfully made the point in a way that scarcely permits forgetting: "[t]he concept of legal certainty is a central concept of [our] inherited legal methods, in which all have grown up[; i]t is the air in which all jurists have learned to breathe." (22) Bendix was such a believer in legal certainty that, upon his release in May 1937 from the Nazi concentration camp at Dachau, he began to prepare a lawsuit against the camp's commandant. (23) He surely would have brought the suit had his children not first hustled him out of the country to the safety of realist America. (24)

Bendix was the truest of true believers, but commitment to legal certainty such as his is characteristic of European legal systems. (25) Legal certainty is a "general principle of EC law." (26) It is one of a handful of legal concepts so recognized by the European Court of Justice and the European Court of Human Rights. (27) It is a fundamental principle of the national legal systems of Europe: (28) in Germany it is Rechtssicherheit, (29) in France securite juridique, (30) in Spain la seguridad juridica, (31) in Italy certezza del diritto, (32) in the Benelux countries rechtszekerheid, (33) in Sweden rattssakerhet, (34) in Poland do obowiazujacego prawa, (35) and in Finland oikeusvarmuuden periaate. (36) Legal certainty has even made its way back into English through the common law systems of the United Kingdom. (37) A legal system without a modicum of legal certainty is scarcely worthy of the name.

As a general principle of European legal systems, legal certainty "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." (38) It means that: (1) laws and decisions must be made public; (2) laws and decisions must be definite and clear; (3) decisions of courts must be binding; (4) limitations on retroactivity of laws and decisions must be imposed; and (5) legitimate expectations must be protected. (39) Elsewhere I have shown at length how legal certainty is indeed heightened in one EU country, Germany. (40)

III. "WE ARE ALL REALISTS NOW" IS THE AMERICAN CREDO

While jurists elsewhere in the world talk of legal certainty, in America they do not. (41) While once American legal academics spoke of legal certainty, today they speak of legal indeterminacy. (42) They reject legal certainty because they know better, or so they think. (43) Their credo is, "we are all realists now." (44)

The "realists" were a loose group of mostly academic jurists in the United States in the 1920s and 1930s who critiqued what they saw as the prevailing "formalist" American legal system. (45) They thought judges judged without an accurate understanding of the way things actually were. (46) When American jurists today...

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