BenjamÍn Pérez Jiménez
Legal certainty is a concept so commonly used that its meaning is barely analyzed in depth.
Here, it is exposed a brief analysis of this concept and its scope, its importance and its application in a specific legal system.
Security means to be protected from any danger, damage or risk. But when we talk about legal certainty, it means that such security has to be achieved or intended to be achieved by the Law.
In this regard, a legal system is regularly considered to provide security -or certainty- through the protection of some principles, such as the non-retroactivity of the law, the right to a fair trial and the principle of legality, which in Mexico are established in articles 14 and 16 of the Constitution.
However, this may not be enough for a legal system to provide comprehensive legal certainty.
To clarify the scope of comprehensive legal certainty, it must include the following elements:
- Formal elements.
- Material elements.
- Implementation elements.
The formal elements of legal certainty have the function of guaranteeing goals; in other words, it is the integration process of certain values or behaviors that in a community are considered necessary to establish order, thus giving certainty of what can or cannot be done and the consequences of performing certain acts regulated by the legal system. It can be said that it is a process of affirmation of values (with a system of sources, structure of the legal system and its compliance).
An example of this function of the formal elements of legal certainty is the integration of human rights into the legal system. Once they are part of the law, one can have certainty about the consequences of breaching the provisions that protect their compliance.
The material elements of legal certainty refer to the content of the rules of a legal system. It means that, while the formal elements answer the question “how” does the law guarantee, the material elements must answer “what” does the law guarantee.
The material elements of legal certainty are the following:
- Historical circumstances, meaning any data taken from the reality of a community at a given time in its history.
- The ideals of Justice. The set of values and principles that guide the historical reality of a community in order to achieve Justice.
Finally, to reach comprehensive legal certainty, it is necessary that there are previously established legal rules that enable to “know what to expect” (formal elements), and that these rules establish convenient behaviors (material elements), but also THAT THE LEGAL SYSTEM IS EFFECTIVE in its application or implementation.
These elements of implementation on focus on the authorities responsible for rendering justice, which should have the following characteristics: independency, impartiality, permanence, and its powers and organization must be provided for in a general rule. Its main function will be to resolve disputes.
In conclusion, a comprehensive legal certainty must consider certainty in terms of existing prior and clear laws, with a content that satisfies the needs of the community in a historical moment, with a valuable content in terms of Justice and finally, guarantee their coercive compliance through independent and impartial authorities with dispute resolution powers.
