Definition of Legal Certainty – In a country that prioritizes the principle of law as a tool to provide a sense of security and comfort for its people, it is certain that a legal institution is needed that regulates and weighs justice with certainty and on target.
Legal certainty is measured by how much justice is received by the community, both from the lower middle class to the upper class and does not discriminate in giving punishment to existing legal subjects.
In regulating a rule of law and providing a sense of security for its people, legal certainty is very much needed so that the law is implemented properly. Legal certainty as one of the legal identities that is quite important is considered to play a very important role in maintaining the stability of the law that applies to a government.
Well, for that, for Reader friends who want to know more about the meaning of legal certainty and what the experts’ opinions are based on the theories they have put forward, then in this discussion we will focus on providing information related to legal certainty that Reader friends can look at good wherever you are.
Further discussion on the meaning of legal certainty can be seen below!
Definition of Legal Certainty
Certainty itself is in fact the main purpose of the law. Since the publication of the concept of separation of powers by Montesquieu, there have been many historical debates surrounding the law.
Community order is closely related to legal certainty, because order is the essence of certainty itself. Order allows a person to live with certainty when doing what is needed in community life.
Law and certainty are two things that are very difficult to separate. Law exists because there is certainty, the existence of certainty also makes the law more obedient, what is allowed and what is not allowed and knowing the consequences if doing something against the law or against the law.
Certainty means “determination; Regulation”, combining the word “certainty” with the word “law”, becomes a legal certainty, interpreted as a country’s legal apparatus that can guarantee the rights and obligations of every citizen.
Legal certainty (in English: Legal certainly) is the basis that the law must be clear for those who submit to the law, so that they can adjust their actions to existing regulations and the state does not exercise its power arbitrarily.
Legal certainty also means:
- Laws and court decisions should be available to the public
- Laws and court decisions must be clear and unambiguous
- Court decisions should be considered binding
- Laws and evaluations that apply retrospectively should be limited
- Legitimate interests and expectations should be protected
- Legal certainty is a foundation found both in the civil law system and the general law system.
The basis of legal certainty is now considered one of the main elements of the concept of the rule of law.
Normative legal certainty can be interpreted as a legal order that is made and published with certainty. Because the legal certainty can regulate clearly and logically, so that there is no doubt if multiple interpretations occur. So that there is no conflict or contradiction in the norms of society.
Meanwhile, according to Utrecht, legal certainty has two meanings: First, the existence of general rules that are intended to inform individuals of actions that can and cannot be done. Another meaning is the legal protection of individuals against the arbitrariness of the state, because with the existence of these general provisions, individuals can know what the state can order and what should be done to the individual.
Understanding Legal Certainty According to Experts
1. Certainty According to Fence M. Wantu
Legal certainty is “law that does not have the value of legal certainty loses its meaning because it can no longer be a guideline for everyone”. Legal certainty is interpreted as standard clarity so that it can be used as a guideline for those covered in this regulation. The notion of certainty can be interpreted as that there is clarity and firmness in the process of making social law.
2. Legal Certainty According to Van Apeldoorn
Legal certainty is “Legal certainty can also mean things that can be determined by law in certain cases. Legal certainty is a guarantee that the law will be enforced, that those entitled will get their rights and the decision can be enforced. Legal certainty is a valid protection against arbitrariness, meaning that a person can get what he expects.
3. Legal certainty according to Gustav Radbruch
As it has been explained above that the theory of legal certainty is one of the purposes of law and it can be said that legal certainty is part of the effort to achieve justice. Legal certainty itself has a tangible form, namely the coercion and prosecution of an act, which does not care who did it. Legal certainty allows anyone to predict what he will experience if he follows a certain legal path.
Legal certainty is also required before the Equal Treatment Act to meet the principle of non-discrimination. The word certainty has a meaning closely related to the principle of truth. In other words, the word certainty in legal certainty is something that can formally be crossed strictly.
Guarantee with legal certainty that a person can act in accordance with the applicable legal provisions and vice versa. Without legal certainty, one cannot have a standard rule of conduct. In line with that purpose, Gustav Radbruch also stated that legal certainty is one of the purposes of the law itself.
Gustav Radbruch explained that in his theory about legal certainty there are four main issues that are closely related to the notion of legal certainty itself, which are as follows:
- Law is a positive thing, meaning that positive law is a legal regulation.
- The law is based on facts, meaning that the law is made based on facts.
- The facts contained or listed in the law should be formulated clearly to avoid misinterpretation and can be easily enforced.
- Positive law cannot be easily changed.
Gustav Radbruch’s opinion about legal certainty is based on his opinion about legal certainty which means legal certainty itself. Gustav Radbruch thinks that legal certainty is a product of law, or more specifically, legal regulations.
According to Gustav Radbruch’s concept of legal certainty, law is a positive thing that can regulate the interests of everyone in society and which must always be obeyed, even if the positive law is considered unfair. In addition, legal certainty is a binding condition, condition and provision.
In principle, the law must be safe and fair. In other words, safe law is a code of ethics, and fair is a code of ethics that must be supported by order and considered correct. Only with security and justice can the law be implemented in accordance with its mandate.
4. Legal certainty according to Jan M. Otto
In addition to Gustav Radbruch, Jan M. Otto presented his opinion on the legal certainty needed in the following cases.
- Legal certainty provides legal rules that are clear and unambiguous, consistent and available or accessible.
- The rule of law should be the giver of state power, and it has three qualities: clear, consistent, and easy to obtain.
- The supremacy of law can be applied and enforced consistently by various authorities or government bodies.
- Most citizens have the principle that they can agree to the content of legal products. Therefore, the behavior of citizens also adapts to the rules issued by the government.
- Judges are essentially independent, meaning judges do not comment on the application of the rule of law consistently when a judge can observe the law. Judicial decisions can be implemented concretely.
According to Jan M. Otto, the five conditions of legal certainty show that legal certainty can be achieved when the content of the law responds to the needs of the wider community.
Jan M. Otto also explained that legal norms that can create legal certainty are laws that can arise and reflect the dominant culture in society. The theory of legal certainty presented by Jan M. Otto can be called real legal certainty or realistic legal certainty which means that legal certainty can require compatibility between the state and the oriented society.
According to Jan Michiel Otto, legal certainty can even have more legal dimensions. However, that is limited to the five situations explained above. Jan M. Otto believes that the law should be followed by law enforcement agencies whose job is to guarantee legal certainty for order and justice in community life.
5. Legal certainty according to Sudikno Mertokusumo
Sudikno Mertokusumo reflects on Gustav Radbruch who stated that legal certainty is one of the purposes of law and legal certainty is a guarantee that the law can work, that is: legal certainty means whoever is right then he has the right to receive a verdict on the court’s verdict.
Sudikno also explained that although legal certainty is closely related to justice, but law and justice are two different things. Law is universal, binding for all and general, while justice itself has different characteristics, namely subjective, individualistic and not general. From the nature of justice and truth, it is clear that justice and truth are different things.
Legal certainty is thus a healthy enforcement of the law. In this way, the city government can also ensure that existing and registered laws can be implemented. There are points that must be remembered in understanding the values of legal certainty, namely that this value is closely related to the positive legal system and the role of the state in the implementation of these positive rights.
6. Legal Certainty According to Nusrhasan Ismail
Nusrhasan Ismail thinks that in order to create legal certainty in legal provisions, several conditions related to the internal structure of the legal norm itself are needed.
The internal requirements referred to by Nusrhasan Ismail are as follows.
- The concept used is clear. The legal norm contains a description of certain types of behavior, which then also flows into certain terms.
- The existence of hierarchical clarity is considered important because of the issue of legitimacy or illegitimacy. Both mandatory and non-binding in the provisions of legislation. The clarity of this hierarchy can provide an indication of the form of law that has the power to form a provision for a specific legal act.
- Consistent legal standards. In other words, the provisions of several laws and regulations are related to certain topics and do not contradict each other.
In addition, Nusrhasan Ismail explained that legal certainty requires efforts to regulate the law in an official and authoritative law. So that the rules that are formed have a legal dimension and can guarantee the certainty that the law has its function as a rule that must and must be obeyed by the community or its citizens.
7. Legal Certainty According to Fernando M. Manulang
The theory of legal certainty is the clarity of the terms used. Legal norms contain descriptions of certain types of behavior, which then also flow into certain terms. Clarity of the authority hierarchy of the board that forms the legal regulations.
The basis of legal certainty
The basis of legal certainty is explained below:
- According to Lon Fuller in his book The Morality of Law, the basis of legal certainty is a legal system made up of rules that are not based on misleading decisions on a specific problem. The provision will be published and will not apply retrospectively because it endangers the integrity of the system. Done with a formula that can be understood by the community. There can be no conflicting rules. Actions that go beyond what is appropriate should not be required. Can’t be changed often. Rules and day-to-day enforcement should be consistent.
- According to Paul Scholten, the basis of legal certainty is the tendencies that require a good understanding of the law, which are general characteristics with limitations as general characteristics, but do not have to be present.
- According to Sudikno, the basis of legal certainty is the legal relationship between regulations. The basis of law is a basic idea that is general or based on specific regulations (positive law) and can be found by looking for general characteristics in specific regulations.
- According to Roeslan Saleh, the basis of legal certainty is a basic idea such as general rules that form the basis of the legal system. According to Bellefroid, the basis of legal certainty is a fundamental norm that is translated from positive law and whose jurisprudence is not considered to be derived from more general rules, so the basis of law is the formation of positive law in society.
This is a short discussion about the definition of legal certainty. The discussion this time not only discusses the definition of legal certainty but also discusses further the opinions of experts regarding the theory they put forward and knowing the basis of legal certainty that applies today.
Understanding the meaning of legal certainty gives us additional knowledge about the various legal products made by the government so that the community feels the positive impact of clear legal regulations and can provide a sense of security for the community.