Other actors: widening the scope
The concept of real legal certainty thus focuses on the role of the State, as does legal certainty in the narrower, legal sense. At the same time, state institutions do not resolve a vast majority of disputes worldwide.
Similarly, the chances that citizens have access to the certainty at the core of Otto's definition depend on many non-State institutions. Let us consider some examples: the closest courts may be hundreds of miles away, causing people to take cases to the village chief or a religious leader instead. Even if people do manage to obtain a court order securing—for instance—their land rights, it could well be that a large logging company keeps them from securing those rights. The national constitution in a given country might well set out the right to equal treatment. But it is often only when an international or local NGO develops a project around the theme that this right starts to acquire meaning. In sum, the state is but one of the many actors influencing the chances of attaining legal certainty, as Otto defined it.In this final section, we would, therefore, want to propose a more realistic understanding of real legal certainty, one that recognises this institutional pluralism and its normative consequences. This book contains four illustrations of such pluralism in this day and age. Janine Ubink, for instance, discusses the continued relevance, and even the return of traditional authorities and customary law in Africa. Next, Carolien Jacobs describes the interplay between international actors and civil society organisations in delivering key services and performing classic State functions in the Democratic Republic of Congo. Suliman Ibrahim offers a North African example, discussing the role of the Sharia in lawmaking in Libya. In turning towards Indonesia, Sulistyowati Irianto describes how most people do not even turn to State courts, and opt to solve inheritance cases within the family or take them to Islamic authorities.
All these contributions explicitly discuss the historical roots of such institutional pluralism and the changes that it has undergone over time. The end of colonialism was, in many of the country cases discussed, marked by a commitment to building the nation-state at the expense of local legal diversity and international involvement. The past three decades can, in many ways, be considered a ‘revenge of history,' or a return to roots. In this time, religious, traditionalist, or ethno-nationalist institutions have sought, and been given, a place within many nations' institutional landscapes. On the other hand, the failure of the modernist state project also led to the international community taking over the delivery of many key services. For example, Jacobs describes NGOs that work not only on themes like human rights and conflict prevention but also agricultural development, education, health, water, and sanitation.
It is important to set out, as is done in these contributions, the degree to which this involves a permanent interplay between the concerned actors and modernising and globalising forces. Ubink, to cite one example, describes how large mining companies play a role in strengthening the position of chiefs in South Africa. The strengthening of the sharia in Indonesia cannot only be understood as a bottom-up process but is also a result of international support and the rise of social media. The NGOs described by Jacobs work within a market-driven paradigm, with the emphasis of their efforts on clearly measurable output. In Libya, in Ibrahim's chapter, the United Nations Support Mission joined with local civil society in critically engaging with the plans to strengthen the place of the Sharia in the country's new constitution.
At the same time, the presence of, and the interplay between, all these actors results in a situation of legal pluralism. In considering real legal certainty, it is important to recognise the way in, and the degree to which, such pluralism exists and what its effects are.
One effect of the resulting legal indeterminacy, or legal ambiguity, is that it enables those in power to choose the particular normative frameworks that best suit their interests. A realistic approach to real legal certainty recognises this. It builds strategies for strengthening legal certainty on this basis.Conclusion
Professor Otto's understanding of real legal certainty provides a much needed corrective to the general attention for legal certainty in this day and age, as it emphasises relations between citizens, adds socio-legal insight, provides a ‘view from below,' and thus leads to more realistic insights on how to build state institutions. The contributions in this book, all written by colleagues of Jan Michiel Otto, form a wide variety of examples of the concept's relevance. For one, they point out the relevance of ‘getting real,' taking a view from below in understanding what constitutes legal certainty. The first four articles outline this view from below, with insights from John McCarthy et al., Gerard Persoon and Tessa Minter, Andrew Harding, and Keebet von Benda-Beckmann. Through this lens, and using socio-legal research methods, the challenges also become clearer, as is apparent in the contributions by Jianfu Chen, Rikardo Simarmata, Benjamin van Rooij, and Nick Huls. This introduction also calls for a realistic approach to real legal certainty, one that recognises the plurality of actors and the resulting interplay of norms in many given situations. In this manner, it is possible to do what Jan Michiel Otto has done throughout his distinguished academic career: put socio-legal scholarship to the service of the Egyptian villager seeking access to food, the Indonesian wanting recognition of her land rights, and the Libyan who wants a roof above his head. It is in these situations, after all, that real legal certainty matters most.
Notes
1 See Kingdom of Belgium v Commission of the European Communities. ECLI:EU:C:20 05:223.
2 See Rotaru v. Romania [GC], no. 28341/95 ECHR 2000-V and Maestri v. Italy [GC], no. 39748/98, ECHR 2004-I.