Ensuring Legal Certainty: Foundations and Challenges

The Principle of Legal Certainty

The Spanish Constitution (CE) seeks to establish the principle of legal certainty, as outlined in Article 9.3: "The Constitution guarantees the principle of legality, the hierarchy of norms, the publicity of standards, the non-retroactivity of punitive provisions that are not favorable or restrictive of individual rights, legal certainty, accountability, and the prohibition of arbitrary public authorities."

Essential Requirements for Legal Certainty

To achieve legal certainty, certain standards must be met. Citizens need to be knowledgeable about these rules and be able to anticipate the consequences of their actions, understanding what can happen if they break them. Key requirements for legal certainty include:

• There must be no contradictory content within the legal framework.
• A complete system of sources of law must exist.
• Judges and courts have a duty to resolve every case brought before them, adhering strictly to the established system of legal sources.
• Rules must be authentic, properly promulgated, published, and publicly accessible.
• Standards should strive to be clear, use ordinary language, be stable, and avoid ambiguities.

Legal Stability and Repeal Mechanisms

The legal framework must exhibit stability for a minimum period, clearly stating the entry into force and any exceptions. While the entry into force is always specified, exceptions are not always clearly defined.

• Implied vs. Explicit Repeal

  • Implied repeal: This occurs when a new regulation contradicts previous content without explicitly stating the repeal, which inherently provides less legal certainty.
  • Explicit repeal: This happens when a new standard directly and explicitly replaces a previous one, clearly detailing what is being repealed.

The Role of Publication in Legal Certainty

Published standards must be known, as ignorance of the law is no excuse for non-compliance. Adherence to the standard is presumed once it has been published and is publicly accessible.

Current Challenges to Legal Certainty

Current challenges to legal certainty include the multiplicity of issuing bodies. Citizens are subject to a complex web of local, municipal, regional, national, European, and international level ordinances. Furthermore, rapid technological advances can introduce new complexities.

Optimizing Legislative Technique for Clarity

To address these issues, legislative techniques have been developed that establish principles for drafting effective laws. From the perspective of legal certainty, the goal is for citizens to easily understand and comply with the rules, and for legal professionals to interpret and apply them consistently.