Defining real legal certainty

Legal certainty is a recognised legal principle, with the need for foreseeability considered as a basic foundation: “The demand for certainty creates a pressure for clear and precise rules, so that everyone knows where they stand” (Bell 2008).

This statement shows how legal certainty is anchored in the broader notion of the rule of law.

In the early 1990s, after the fall ofthe Iron Curtain, the rule oflaw once more assumed centre-stage in building states—but now, in particular, also in building markets. Influenced by the work on the role of institutions in development by Douglass North, the World Bank made rule of law promotion a key component of its ‘good governance' agenda. The fields for intervention were partly the same and partly different from those contained in legal liberalism. Generally speaking, the attention shifted from legal education to the judiciary and from private law in general to business law and human rights. Land law and land registration attracted particular focus, following the argument by Peruvian economist Hernando de Soto that the failure of capitalism in the developing world was due to the uncertainty in land tenure arrangements that prevented citizens from turning their property into capital. This argument was perhaps the most concrete translation of Douglass North's new institutionalism into actionable law development programmes.

Although many have raised questions about the effectiveness of rule of law development (Carothers 2011; Golub 2003) and land registration in particular (e.g., Otto 2009), this ‘wave' has not passed. Rather, it has been combined with approaches promoting access to justice and legal empowerment and merged into programmes that also address global concerns about security and failed states (e.g., Krasner 2003). The rule of law as an ideal in international development co-operation still commands broad support, and within rule of law programmes, procedural aspects are still key.

This is partly due to the way in which development co-operation is organised, with separate sectors for rule of law development and human rights promotion. It is probably also due to the influence of theorists like Joseph Raz and Brian Tamanaha, who promote a so-called ‘thin' conception of the rule of law. This conception is very close to Otto's real legal certainty. It includes clear, consistent, and accessible legal rules (i.e., formal legality). It involves government institutions applying these rules consistently and themselves complying with them (i.e., formal equality and government bound by law). Finally, it finds independent and impartial judges consistently applying such rules in the course of dispute settlement (i.e., independence of the judiciary). In fact, it seems that real legal certainty is almost synonymous with such a ‘thin' conception of the rule of law, but a few points of contention remain.

First, the dimension in real legal certainty that most citizens in principle conform to such rules is debated. According to Tamanaha, there can only be rule of law if both government officials and “citizens are bound by and generally abide by the law” (Tamanaha 2011, 2; see also Krygier 2008, 13 ff.). However, this point is seldom made. For most of those writing about the rule of law, the point that citizens are bound by law is self-evident. That citizens abide by the law is something beyond the perspective of rule of law theorists for two reasons.

The second point also relates to the empirical dimension of the rule of law: judicial decisions must be put into practice—not only decisions defeating the executive but all decisions, including those between citizens. Just as with the previous point, here Otto makes explicit something that is considered self-evident by most rule of law theorists. No doubt, his background as a development administration scholar and his experiences as a jurist have made him sensitive to the state's lack of capacity to enforce its decisions in dispute cases between citizens.

In short, the concept of real legal certainty as set out by Otto is largely a restatement of the procedural elements of the rule of law. However, he moves these elements away from the rule of law's primary objective of controlling the state and towards facilitating and controlling interactions between citizens. Moreover, by emphasising the empirical component in this venture, his concept cannot be used interchangeably with the rule of law and does denote a particular realm of action and research. One reason to re-evaluate and even reinstate Otto's concept of real legal certainty is the more general return of the notion of legal certainty narrowly defined in academia in the past years. Much of this recent literature focuses on legal certainty as a formal aspect of law, the certainty that law is and remains recognisable and predictable (Gamper 2016). This is in line with the case law of, for instance, the main European courts. The European Court of Justice, for instance, defined legal certainty as “a fundamental principle of Community law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly.”¹ The European Court of Human Rights, in Strasbourg, emphasized that, “The law should be accessible to the persons concerned and formulated with sufficient precision to enable them—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.”² In this recent literature, the attention on the more empirical understandings of legal certainty, and on citizen perspectives, remains far too scarce.

Let us, therefore, turn to some examples of the insights that such an empirical perspective can yield, putting citizens at the heart of the inquiry. We do this by first concentrating upon the value of a ‘view from below.' Subsequently, we discuss what such a perspective means for insights into strengthening institutions, and thus legal certainty.