Genesis of the category «legal certainty» in modern legal science

The article deals with the category "legal certainty" and stresses the flexibility of its understanding and use in legal science. The author analyses the notion of "formal certainty" (as a prototype of the term under consideration) and states that that notion was connected with a normative approach to understanding of law and included such a requirement to it from external and internal sides as certainty. The compliance of the right with this requirement explained the possibility of the latter to ensure security and stability in a society. It has been noted that the concept" legal certainty" as a category was first transformed within the frame of the concept "natural law" from an objective sphere into the category of a subjective sphere and was defined as "an integral right of a person to the certainty of legal norms". The understanding of "legal certainty" in the decisions of the European Court of Human Rights and the Constitutional Court of the Russian Federation is under consideration. The European Court of Human Rights considers and applies the category "legal certainty" in several meanings: firstly, as a requirement to national legislators (this requirement deals with a law making process resulting in a new norm); secondly, the requirement to a court decision which is the result of a law enforcement activity. In this case the European Court of Human Rights considers the requirement for legal certainty in two aspects: as the requirement to a court decision (its clarity, consistency and motivation) i.e. to its content; as the requirement in the sense of "firmness" of the final court decision which is called to be a stable regulator of public relations on the whole. We come across the same understanding of the category "legal certainty" in some decisions of the Constitutional Court of the Russian Federation which forms the concept of the "supremacy of law" on the national level and considers this principle to be an integral element of a law abiding state. It's noted in the article that there is no unity of opinions on "legal certainty", its criteria and relationship with other principles in current courts' (both in civil and criminal cases) practice. The author comes to the conclusion that, being a characteristic of the "supremacy of law" on international and national levels, the category "legal certainty" should be brought to a common denominator and be considered in two senses. The first sense is a subjective one and represents an a natural right of a person (a citizen) to legal certainty i.e. a natural possibility of every person and citizen to know and understand his/her legal position in the society and state including the position determined by the court. The second sense is an objective one and represents the set of legal norms and institutions which ensure the anticipation by a person (a citizen) his/her position in the society and state.

Keywords

Authors

References