What are the chances that an Egyptian villager who is entitled to receive subsidised bread realises this right?
B. Oomen and A. Bedner
What is the likelihood that an Indonesian city dweller who has lived for more than 40 years on a plot without disturbance obtains state recognition for her tenure? What are the prospects that a Libyan who lost his apartment under Gaddafi receives compensation? And what, to highlight another part of this puzzle, is needed to empower the Egyptian, the Indonesian, or the Libyan state institutions in such a manner that these chances increase? Which dynamics are at work in such cases?
These questions, we venture, constitute the red thread that runs through the academic work of Jan Michiel Otto, who founded the field of Law, Governance and Development at Leiden University, and held the chair in this field from 2000 onwards.
They led him to coin the concept of ‘real legal certainty' in his inaugural lecture in 2000 (Otto 2000b), and to expand on it in a volume on the implementation of the law in China (Otto 2002b). And although he never provided any further theoretical elaboration and seldom referred to the concept explicitly, it constitutes the backdrop to most of what he has since written. What is more, it is a concept with important potential in this day and age.In Otto's definition, real legal certainty consists of five probabilities (Otto 2002b, 25). First, that there are clear, consistent, and accessible legal rules, issued or acknowledged by or on behalf of the state. Second, that the government institutions apply these rules consistently and themselves comply with them. Third, that most citizens, in principle, conform to such rules. Fourth, that in the course of dispute settlement, independent and impartial judges apply such rules consistently. Fifth, that those judicial decisions are enforced. Such real legal certainty, Otto argues, is the objective of the implementation of law and one of the objectives of development.
Not only is it an important precondition for achieving other development goals, such as eradicating poverty, promoting health, etc., but it is also a goal in itself. Assessing real legal certainty requires a particular methodology, with a focus not only on legal rules but also on institutions and the wider social context. Here, classic positivist legal research methods do not suffice, and there is a need for multi-disciplinary, socio-legal research.Both this concept and this approach, it seems, are more relevant than ever. They form an important corrective to the surge in attention for legal certainty defined in a more narrow sense. Whereas there is increased scholarly attention on legal certainty, there has been little engagement with the term ‘real’—the term in Otto's definition that looks upon the practical results of the operation of a legal system and the insights and interventions that improve them. The gap between the rules and acts produced by the legal system and what happens in practice is present everywhere, but it is particularly conspicuous in the developing world that constitutes the focus of Otto’s work. However, no matter how obvious, many practitioners in law and development still fail to act upon it. That it has a useful signalling function for such practitioners is therefore beyond discussion.
The concept, however, can also strengthen current scholarship on analysing the role of law in development processes, widely defined. The objective of this introductory chapter is then to both illustrate the relevance of real legal certainty as an analytical concept and an approach in research, and to engage critically with it. This is done on the basis of the contributions to this volume, all written by (former) colleagues of professor Otto. It will proceed by comparing common understandings of legal certainty against the notion of real legal certainty. Subsequently, we will illustrate the relevance of twin aspects of Otto’s concept of real legal certainty on the basis of both general literature and the case studies presented in this volume. On the one hand, there is the emphasis on the ‘view from below,’ the implementation of the law in the everyday life of citizens. On the other, there is the focus on truly equipping the State to provide the real legal certainty that citizens call for. After highlighting these aspects, we turn to a more critical engagement with Otto’s understanding of real legal certainty. Most of all, there is the need to— in this day and age—consider actors other than the nation-state when it comes to realising real legal certainty. This entails the importance of recognising the effects of the resulting legal pluralism, and also of discussing the role of legal ambiguity concerning social justice. All this, then, leads to a conclusion about the relevance of real legal certainty, realistically considered, in today's day and age.