Introduction
It seems fitting in this collection of papers to contribute to Otto's interest in legal certainty by posing some questions that emerge from an anthropological perspective. Let me be clear that in no way do I want to question that more legal certainty is desirable in many regions of the world.
Many regions suffer severely from a lack of it. However, the logic of legal certainty through the rule of law deserves reflection. What uncertainty should be addressed? A good starting point is the insight that a fundamental level of uncertainty is not necessarily an anomaly. Certainty is perhaps more of an exception than is generally assumed. As Sally Falk Moore (1978, 48-49) formulated it, “social life is presumed to be indeterminate except in so far as culture and organized or patterned social relationships make it determinate.” Organisations, including polities such as the state and its laws and regulations, are never more than “islands of determinacy in a sea of indeterminacy” (Benda-Beckmann and Benda-Beckmann 1994, 7; Moore 1978, 41).The second set of issues is somewhat of a subset of the first and concerns legal certainty. So much energy is put into attempts to generate more legal certainty that one might get the impression that the more legal certainty there is, the better it is for society. At face value, this seems entirely convincing. However, Moore's analysis implies that the human condition is one of only partial determinacy. The question then is where the comfort zones of certainty and uncertainty might be. To be sure, too much indeterminacy and uncertainty are threatening. But too much determinacy, or certainty, may be suffocating. Both would ultimately make social life impossible. Social life can be no more than partially determinate. Certain degrees of uncertainty are necessary, but the levels of certainty and uncertainty that people can tolerate vary a great deal.
A well-functioning legal system offers both the uncertainty that comes with freedom and certainty. To put it differently, a well-functioning state's legal system offers certainty in where it does and does not allow freedom. The problem is that states often play an ambivalent role. They may simultaneously be an important source of desired freedom (i.e., uncertainty) and undue uncertainty.In this essay, I want to briefly discuss three major problems related to the state's role in undesirable legal uncertainty: Incommensurability of legal regulations, corruption and incapability of the state administration, and hyper-regulation. Incommensurability is an issue that has been especially relevant in former colonial states. There it has been acknowledged as a serious problem since colonial times but has acquired importance in industrialised societies with increasing globalisation. Corruption and incapability are chiefly problems in ill-functioning states. Hyper-regulation pertains mainly to well-functioning states but has an impact on ill-functioning states as well.
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