Balancing legal certainty with regulatory flexibility

Abstract

Introduction The concept of legal certainty is a central element of most legal systems in the world (Maxeiner 2008: 28). It can be associated with the rule of law, but variations exist concerning its exact contours and its relative importance vis-a-vis other fundamental legal principles. In particular, legal certainty is often contrasted with principles of justice or rightfulness (von Arnauld 2006: 638). Indeed, a formal understanding of legal certainty which focuses on issues of stability and consistency does not guarantee a fair and just outcome. More fundamentally, even though legal certainty is one of the most effective safeguards against governmental and administrative arbitrariness, it offers no protection against unjust or unfair laws. How can the potential for conflict between legal certainty and justice be solved? Writing shortly after the breakdown of the Nazi dictatorship, the German legal philosopher Gustav Radbruch (1946: 107) gave this answer: ‘The conflict between justice and legal certainty should be solved in such a manner that positive law should be considered supreme even if it is unjust or unreasonable unless the conflict between positive laws and justice reaches such an intolerable level that the statute – as ‘incorrect law’ – has to yield to justice’ (author’s translation from German). Even though this famous quote aimed predominantly at reconciling extreme forms of injustice with legal positivism, it highlights the fundamental importance of legal certainty in modern constitutionalism and legal philosophy and the difficulty of balancing legal certainty with justice.