Author: Barnes, Jeffrey

Source: Legisprudence, Volume 2, Number 2, 2008 , pp. 119-154(36)

Publisher: Hart Publishing

Abstract:

"Legal certainty" in relation to legislation is a problematic and contested notion in both its descriptive and normative senses. Three views of legal certainty are examined in this article: the view that legislation can never be certain; the view that legal certainty is a realistic possibility even for a lay reader, a view taken by certain elements of the "plain language" movement; and the orthodox legal view that legal certainty is achievable but only in some situations. This article critically analyses each of these viewpoints through an analysis of the nature and range of sources of doubt as to the meaning of legislative texts. Sources of doubt are the factors from which doubt may arise in a particular case. The literature on sources of doubt is piecemeal, fragmented, and hitherto neglected. This article synthesises common sources. It then examines, through the prism of sources of doubt, how realistic are each of the three views of legal certainty. It finds that the orthodox legal view is the preferable view in a descriptive sense. But the quest for legal certainty, assumed in rule of law theories, is problematic because uncertainty in the law is undervalued.

Keywords: Legal certainty; legislation; plain language movement; rule of law; sources of doubt

Document Type: Regular paper

Publication date: 2008-01-01

More about this publication?

• Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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