Some realism about legal certainty in the globalization of the rule of law.

I. INTRODUCTION

Legal certainty is a central tenet of the rule of law as understood around the world. (1) For example, the Foreign Ministers of the G8 (2) declared in their meeting at Potsdam in 2007 their nations' commitment to "the rule of law [as a] core principle[] on which we build our partnership and our efforts to promote lasting peace, security, democracy and human rights as well as sustainable development worldwide." (3) They stated that it is "imperative to adhere to the principle[] ... of legal certainty." (4)

While the United States is among the strongest proponents of the rule of law, (5) American jurists do not speak of legal certainty--at least, not anymore. (6) While the term "legal certainty" is English, it is not American English. (7) American academics who address certainty of law use another term, "legal indeterminacy"; (8) practicing lawyers by and large do not use either of these terms. (9) Both groups of jurists seem resigned to ubiquitous uncertainty. (10)

The Secretary General of the United Nations wisely counseled, "a common understanding of key concepts is essential." (11) Common efforts to build the rule of law have been "plagued" by "the failure of many policymakers to examine or fully understand the very concept of the 'rule of law.'" (12) How are we to build a partnership based on a concept on which we differ?

This Article seeks to facilitate the international discussion of legal certainty and the rule of law. It aims: (I) to make Americans aware that skepticism of legal certainty espoused by American academics is atypical; (II) to make non-Americans aware of American skepticism of legal certainty; and (III) to help Americans and non-Americans alike understand each other better so that they may more efficiently cooperate. (13)

II. LEGAL CERTAINTY IS THE INTERNATIONAL BASIS OF THE RULE OF LAW

While at its outer bounds the rule of law may be "an essentially contested concept," (14) at its core, it promises legal certainty. (15) According to a recent publication of the Organisation for Economic Cooperation and Development (OECD), "... the concept first and foremost seeks to emphasize the necessity of establishing a rule-based society in the interest of legal certainty and predictability." (16)

A legal system that provides legal certainty guides those subject to the law. (17) It permits those subject to the law to plan their lives with less uncertainty. (18) It protects those subject to the law from arbitrary use of state power. (19)

The centrality of legal certainty to the thinking of continental jurists is not well appreciated by American academics captivated by legal indeterminacy. (20) For the great German legal philosopher, Gustav Radbruch, legal certainty--along with justice and policy--was one of only three fundamental pillars of the very idea of law. (21) Radbruch's contemporary, Ludwig Bendix, colorfully made the point in a way that scarcely permits forgetting: "[t]he concept of legal certainty is a central concept of [our] inherited legal methods, in which all have grown up[; i]t is the air in which all jurists have learned to breathe." (22) Bendix was such a believer in legal certainty that, upon his release in May 1937 from the Nazi concentration camp at Dachau, he began to prepare a lawsuit against the camp's commandant. (23) He surely would have brought the suit had his children not first hustled him out of the country to the safety of realist America. (24)

Bendix was the truest of true believers, but commitment to legal certainty such as his is characteristic of European legal systems. (25) Legal certainty is a "general principle of EC law." (26) It is one of a handful of legal concepts so recognized by the European Court of Justice and the European Court of Human Rights. (27) It is a fundamental principle of the national legal systems of Europe: (28) in Germany it is Rechtssicherheit, (29) in France securite juridique, (30) in Spain la seguridad juridica, (31) in Italy certezza del diritto, (32) in the Benelux countries rechtszekerheid, (33) in Sweden rattssakerhet, (34) in Poland do obowiazujacego prawa, (35) and in Finland oikeusvarmuuden periaate. (36) Legal certainty has even made its way back into English through the common law systems of the United Kingdom. (37) A legal system without a modicum of legal certainty is scarcely worthy of the name.

As a general principle of European legal systems, legal certainty "requires that all law be sufficiently precise to allow the person--if need be, with appropriate advice--to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (38) It means that: (1) laws and decisions must be made public; (2) laws and decisions must be definite and clear; (3) decisions of courts must be binding; (4) limitations on retroactivity of laws and decisions must be imposed; and (5) legitimate expectations must be protected. (39) Elsewhere I have shown at length how legal certainty is indeed heightened in one EU country, Germany. (40)

III. "WE ARE ALL REALISTS NOW" IS THE AMERICAN CREDO

While jurists elsewhere in the world talk of legal certainty, in America they do not. (41) While once American legal academics spoke of legal certainty, today they speak of legal indeterminacy. (42) They reject legal certainty because they know better, or so they think. (43) Their credo is, "we are all realists now." (44)

The "realists" were a loose group of mostly academic jurists in the United States in the 1920s and 1930s who critiqued what they saw as the prevailing "formalist" American legal system. (45) They thought judges judged without an accurate understanding of the way things actually were. (46) When American jurists today say "we are all realists now," they mean that contemporary American lawyers work with "a full awareness of the limitations and flaws in the law and the complexity and openness of judicial decision making." (47)

Sophisticated American jurists today no longer believe in legal certainty as an attainable or even desirable goal. (48) According to Professors Jules Coleman and Brian Leiter, "only ordinary citizens, some jurisprudes, and first year law students have a working conception of law as determinate." (49) Many American jurists regard legal certainty as a chimera, an infantile longing, a childhood belief that one gets over, just as one gets over belief in Santa Claus or the Wizard of Oz. (50) In their assessment, they hearken back to the opinion of Judge Jerome Frank, the noted realist, who in his 1930 book Law and the Modern Mind challenged the idea that legal decisions are always certain. (51) Frank deprecated as a childish myth the idea that law could ever be certain. (52) His criticism was effective; by the 1960s the term "legal certainty" had fallen out of use. (53)

Ironically, most legal realists did not share Frank's extreme views of legal certainty. (54) They did not argue that judicial decisions are always uncertain. (55) Most did not even argue that judicial decisions are usually uncertain. (56) Karl Llewellyn, perhaps the best known of the legal realists, agreed that law is not always certain, but did not agree that law is necessarily uncertain. (57) Indeed, as the principal drafter of the Uniform Commercial Code, America's most European piece of legislation, Llewellyn invested heavily in bringing certainty to American law. (58)

Yet today, three quarters of a century later, legal certainty has disappeared as a concept of the American legal system and as a goal to strive for; legal indeterminacy has become the common "conceptual terrain." (59) The term "legal indeterminacy" in its present sense made its first appearances only in the 1960s and did not achieve currency until the 1980s, when a new group of legal academics, known as "crits" (from Critical Legal Studies), adopted it. (60) Some of them endorsed the more radical position espoused by Frank that legal decisions are always uncertain. (61)

Legal indeterminacy means that law does not always determine the answer to a legal question. (62) According to the strongest version of the "indeterminacy thesis," known as "radical indeterminacy," law is always indefinite and never certain, any decision is legally justifiable in any case, and law is nothing more than politics by another name. (63) Scholars quickly dispatched this point. (64)

While few American jurists accept a strong version of indeterminacy, most academics, and perhaps most lawyers, believe in a weaker version sometimes termed "underdeterminacy." (65) Underdeterminacy means that while the law constrains judicial decision, it does not uniquely determine it. (66)

This does not seem to be a particular advance on what Llewellyn and other Americans--including this Author relying on Llewellyn--said decades ago. (67) To jurists schooled in civil law methods, it is quite unremarkable. Karl Engisch, in his classic work on legal method, wrote long ago that binding to a statute "will always be a question of more or less." (68)

Legal certainty and legal indeterminacy are not complements. (69) Legal indeterminacy as a legal proposition has narrower application than does legal certainty. (70) As far as individuals are concerned, legal certainty serves two distinct functions: it guides them in complying with the law, and it protects them against arbitrary government action by controlling the use of the power to make and apply law. (71) American legal indeterminacy is concerned principally only with the latter; (72) it is interested in the former only incidentally in that it is concerned with predicting appellate decisions. (73)

Legal indeterminacy is principally a theory of appellate judicial decision making. (74) It assumes the perspective of appellate judges. (75) By focusing on whether rules require appellate judges to reach particular correct answers, the American discussion of legal indeterminacy overstates the level of uncertainty and underestimates opportunities for decreasing it. (76)

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