Legal certainty

from Wikipedia, the free encyclopedia

The principle of legal certainty is a core part of the rule of law . Legal security is based on the requirement of clarity , stability , predictability and guarantee of legal norms as well as the specific legal obligations and authorizations bound to them . It is part of the elementary basis of a constitutional social order.

Legal philosophical purpose

Legal certainty should serve to establish the trust of the citizens in the reliability of the legal system , to strengthen it and to anchor it as part of the natural social coexistence. Legal security also includes the clarification of controversial legal questions or legal relationships within a reasonable time and the establishment of legal peace .


Obviously one of the first to deal with legal certainty was Wilhelm Joseph Behr in his 1810 book System der angewandte Allgemeine Staatslehre . Meyers Konversations-Lexikon from 1851 understood it to mean that human condition "in which he sees his life, his freedom, his honor and his property, and generally his right as a citizen protected by the state." Legal certainty demands the permanence of the law, legal continuity is an element of legal security for Ludwig Bendix . Gustav Radbruch made it clear that every legal system had to fulfill three purposes at the same time: to ensure justice , promote the common good and create legal certainty. In the legal certainty the certainty about the legal norms is to be seen.

According to Radbruch's formula , for reasons of legal certainty, positive law deserves to be preferred to non-positivated principles of justice, in principle, even if it turns out to be unjust, because the link between legal certainty with formal law and thus with written law means for those subject to the law, that he can recognize the applicable legal principles. At the same time, Radbruch emphasizes that justice and legal security, as demands arising from the “idea of law ”, are in principle equally important; neither of these two sides of the legal idea deserves priority over the other. These are equal but potentially contradicting demands. These two premises - the principle of equality and the burden of conflict - lead Radbruch to a conclusion that deviates from legal positivism : the principle of legal certainty must at least take a back seat to the principle of justice if the injustice of the law in question exceeds a certain level, in Radbruch's words " becomes unbearable ”. Formulated in accordance with today's legal usage , positive law enjoys only prima facie priority over divergent principles of justice , but not the absolute priority of the law .

General principles in German law

Constitutional aspects

Legal certainty in the law means that there are no doubts about the rights and obligations of a legal system. In 1953, the Federal Constitutional Court ruled that legal security should therefore be guaranteed by the state as an essential part of the rule of law . The essential structural elements are legal clarity, reliability, predictability and recognizability of the law, with which the citizen is to be protected from legal, judicial or administrative overstrain or surprise. It must not be made unnecessarily difficult for the citizen to behave in accordance with the law within the legal framework. For him, legal security primarily means protection of legitimate expectations . It is argued that legal certainty appears in everyday life precisely where individual demands for fair treatment are disappointed because someone is confronted with deadlines , legal and final authority decisions and other obstacles. Legal security includes legal claims that serve orientation and legal implementation: Orientation security describes the clarity (certitudo) of what one should do and what one can expect oneself, implementation security means the reliability (securitas) that legal norms and specific obligations are observed and enforced become.

In view of the difficulties of defining the term “legal certainty”, most authors forego a definition and limit themselves to individual aspects. There is agreement that there is a correlation between the terms legal security and the protection of legitimate expectations, which help to define the essential content of the rule of law. According to Franz Scholz , legal security means a legal status that "protects the goods of life as completely and effectively as possible and realizes this protection impartially and fairly, and is therefore provided with the appropriate legal protection mechanisms and enjoys the trust of those seeking justice in the fair handling of the law ..." Otherwise, the legal one is linked Literature with the term legal security mostly only a partial aspect of the rule of law. This primarily relates to higher-level legal principles to the laws and legal validity of state decisions, the regulatory retroactivity or the requirement of laws and regulations, embossed certainty requirement . A criminal offense can only be punished within the framework of the non-retroactivity rule if the criminal liability was determined by law before the offense was committed ( Art. 103 (2) GG, Section 2 StGB ). The legal principle nulla poena sine lege enshrined in this is one such aspect of the concept of legal certainty, in which citizens can rely on their actions being lawful as long as they are not punishable. Another connection exists between legal certainty and the constitutional prohibition of arbitrariness .

According to Franz Scholz, legal security is not an objective basic principle, which is why judicial judgments and administrative acts must be fundamentally revisable in order to establish (greater) legal security. If legal remedies are no longer possible, judgments and administrative acts are fundamentally final and can (within the framework of narrow conditions, however) be removed through retrial . This means that even judgments are subject to the reservation of annulment if they have broken the law.

Civil law aspects

In civil law, legal security is consistent with contract security . Legal certainty requires that contracts are sufficiently understandable so that the resulting rights and obligations are able to bind those concerned. It requires the contracting parties to comply with concluded contracts ( pacta sunt servanda ) and other economic operators to comply with them. To do this, they must comply with applicable law, create legal binding, be legally effective and enforceable in the relevant legal system. Enforceable means that all legal claims have legal standing and can actually be implemented through a functioning jurisdiction and an intact enforcement system.

There is no legal certainty when laws or contracts can be interpreted differently or even contain loopholes . Legally established rules of interpretation ( § 133 , § 157 BGB ) may help to find amicable solutions retrospectively. These rules of interpretation must be applied by the courts when interpreting unclear laws as well as disputed contracts. One of their purposes is to restore legal certainty.

The time window for creating legal certainty in stock market trading is particularly stringent and tight . There remain after the transaction only 30 minutes to a faulty business (so-called Mistrade ) for mistake to challenge . Thereafter, any cancellation or civil rights contestation of the transaction is excluded.

Economic aspects

In economics, the state of legal certainty is a decisive, institutional, long-term and continuous framework that has a positive and lasting influence on economic growth . The following are important: independent and effective courts and administrations, the prevention of corruption and money laundering as well as compliance with the security of contracts and registers. The long-term development of communities requires a solid legal framework, especially with regard to property rights, creditor protection and the security of the exchange of goods and services.

The economic historian Douglass North points to the economically relevant factors of institutions that increase and decrease transaction costs with regard to ensuring legal certainty. In his opinion, the inadequacies of many communities, effective institutions or rules to ensure the "fulfillment of contracts" (- not the "conclusion of contracts") at manageable costs are the main causes of a lack of economic growth, economic stagnation and underdevelopment. According to North, this primarily concerns the avoidance of legal proceedings in the face of clear facts as well as the use of documenting documents (e.g. judicial or notarial protocols) as the basis of evidence in the investigation of facts.

Legal certainty criteria

Legal clarity

The law creates certainty of orientation only to the extent that it is unambiguous and clear. Legal clarity requires in particular that the regulatory content of the legal norms is free of contradictions and is understandable and unambiguous for the addressees and the users of the law. ( See also: Clarity of standards .)


Also the publicity , i. H. the public announcement of state acts, especially through the drafting and promulgation of legal norms ( laws , ordinances , statutes ), serves to provide orientation security. There must be no unreasonable difficulties in gaining knowledge of the applicable law. The repeal of legal norms must therefore also be published. Administrative regulations must be published if they (even if only indirectly) have a general external effect. Individual acts of public authority (such as court decisions and administrative acts ) are to be announced and made known to those affected in accordance with the statutory provisions. Insofar as individual acts contain fundamental decisions that can be of considerable significance for the general application of the law, they must also be published.


In addition to the clarity of content, there is also the specificity of the constituent elements. The principle of certainty is graded depending on the legal norm or act of public authority: Laws that contain abstract, general regulations are less specific than concrete legal ordinances . A high degree of certainty is required for stressful individual acts. Special regulations of the requirement of certainty apply to ordinances ( Art. 80, Paragraph 1, Sentence 2, Basic Law) and for criminal law ( Art. 103, Paragraph 2, Basic Law).

Persistence and non-retroactivity

The stability of the law is intended to protect the trust of the citizens in the legal regulation. It is particularly problematic with retroactive laws: In principle, a regulation that has already been made may not be changed retrospectively to the detriment of the person concerned (according to the Federal Constitutional Court in constant case law, so-called "real retroactive effect" or "retroactive effect of legal consequences"; see Ex tunc ). Exceptions should only apply if there was no trust, no trust should have been expected or the common good is paramount. In the case of ongoing life issues, retroactive effects are only permitted within the framework of proportionality (so-called “false retroactive effect” or “factual re-connection”). However, it is inadmissible if the trust in the earlier regulation deserves greater protection than the common good.

Legal remedies

“The principle of legal certainty has an impact in the area of ​​procedural law, among other things in the postulate of clarity of legal remedies . The rule of law requirement of the measurability and predictability of state action leads to the requirement that the person seeking justice should be clearly mapped out the way to review judicial decisions. The legal form of the legal remedy should in particular enable the citizen to check whether and under what conditions it is permissible. If the formal requirements are so complicated and difficult to grasp that it cannot be expected that the person seeking justice will be able to obtain information about them in a reasonable manner, the legal system would at least have to provide information on legal remedies to compensate for the deficit. However, this can only be reliably granted if the admissibility requirements of the respective legal remedy are regulated in the legal system. "

Legal certainty in case law

The maxim of legal certainty also applies to case law, but to a lesser extent. The Federal Constitutional Court explains:

"Supreme court case law, however, is not statutory law and does not create a comparable legal binding (cf. BVerfGE 122, 248 <277>; 131, 20 <42>). The validity of specialized judicial interpretation of the law, which extends beyond the individual case, is based solely on the persuasiveness of its reasons and the authority and competencies of the court. There is no need to provide evidence of significant changes in the circumstances or general views so that a court can deviate from its earlier case law without violating Article 20.3 of the Basic Law. The change of a permanent supreme court case law is fundamentally harmless from the point of view of the protection of legitimate expectations if it is adequately justified and remains within the scope of a foreseeable development (see BVerfGE 84, 212 <227 and 227>; 122, 248 <277>). Trust worthy of protection in a certain legal situation based on supreme court case law can therefore usually only arise in the event of additional circumstances, in particular in the case of established and longstanding case law (see BVerfGE 126, 369 <395>; 131, 20 <42>) "

This in a case in which a union was denied the ability to pay a collective agreement. That is, in an equally burdensome case law.

Legal certainty in international law

Legal security in Germany has constitutional status with Article 20 of the Basic Law. It also has constitutional status in the United States through the 5th Amendment to the United States Constitution and the 14th Amendment to the United States Constitution. Legal certainty is also a central principle of international law and a prerequisite for the rule of law.

In EU law , legal certainty is the requirement that the legal validity in a certain situation must be foreseeable. Accordingly, legal security is provided by the principles


In this form, legal certainty in the Anglo-Saxon legal area ("legal certainty") is just as much a basic principle of the rule of law as it is in the French area ("sécurité juridique"). The enforcement of contracts with foreign element legal certainty, plays a special role because on the basis of private international law must be examined (IPR) whether the contracts after the foreign legal system stand up in courts abroad in the intended manner and both sides fulfilled are. Since these are often complex legal regulations, it is advisable to involve legally competent circles ( chambers of commerce abroad , lawyers , embassies ).


Problems arise between legal certainty and material justice. Both are values ​​of the rule of law. The existence of a civil law claim (material justice) is destroyed by the institute of limitation (legal security). In such cases, the legislature has the task of balancing both interests in legislation by setting priorities.

See also


Individual evidence

  1. ^ Wilhelm Joseph Behr : System of applied general state theory. Part I, § 88, 1810, p. 53.
  2. ^ Joseph Meyer : Conversations Lexicon. Volume VIII, p. 1279.
  3. Ludwig Bendix : The problem of legal security , 1914, p. 15.
  4. Gustav Radbruch : The Spirit of English Law. 1947, p. 51.
  5. Gustav Radbruch: The Spirit of English Law. 1947, p. 59.
  6. Cf. Gustav Radbruch: Preschool of Legal Philosophy . 2nd Edition. Göttingen 1959, p. 33 .
  7. On the concept of prima facie precedence see Robert Alexy : Theory of Basic Rights . 2nd Edition. Frankfurt am Main 1994, p. 87 ff . (with further references to specialist philosophical literature). According to this, prima facie reasons are - in contrast to definitive reasons - those that can be eliminated by opposing reasons.
  8. BVerfGE 2, 380 , 403.
  9. Reinhold Zippelius : The essence of law. 6th edition. 2012, chap. 10
  10. ^ Hans D. Jarass , Bodo Pieroth : Basic Law for the Federal Republic of Germany. Commentary, 2004, Art. 20, Rn. 63 ff.
  11. Michael Sachs in: P. Stelkens, HJ Bonk , M. Sachs (eds.): Administrative Procedure Act. Comment. 8th edition. 2014, § 43 No. 9 and § 48 No. 28.
  12. BVerfGE 94, 241 , 258.
  13. ^ Theodor Geiger : preliminary studies for a sociology of law. 4th edition. 1987, p. 63 ff .; Reinhold Zippelius: Philosophy of Law. 6th edition. 2011, § 23 II; Anna Leisner : Continuity as a constitutional principle. 2002, p. 118.
  14. ^ Andreas von Arnauld : Legal security. 2006, p. 102. (
  15. ^ Franz Scholz : The legal security. 1955, p. 3.
  16. Compare to the prohibition of retroactive effects, Andreas von Arnauld: Rechtsssicherheit. Tübingen 2006, p. 325.
  17. Compare to the principle of certainty, Klaus Stern : The State Law of the Federal Republic of Germany. 2nd Edition. Volume 1, 1984, p. 830 with evidence from the case law of the Federal Constitutional Court.
  18. Martin Kriele (Ed.): Intention and Interpretation. 1998, p. 53. (
  19. Jochen Emmert: In search of the limits of contractual performance obligations. 2001, p. 170 f. (
  20. ^ Frankfurt Stock Exchange: Conditions for transactions on the Frankfurt Stock Exchange. (PDF) (No longer available online.) January 3, 2018, archived from the original on February 25, 2018 ; accessed on March 5, 2018 .
  21. Eurex Deutschland and Eurex Zürich: Conditions for trading on Eurex Deutschland and Eurex Zürich. (PDF) (No longer available online.) January 3, 2018, archived from the original on January 22, 2018 ; accessed on March 5, 2018 .
  22. Tradegate Exchange: Conditions for business on the Tradegate Exchange. (PDF) November 24, 2017, accessed March 5, 2018 .
  23. cf. z. B. William Easterly: National policies and economic growth: A reappraisal. In: Philippe Aghion, Steven Durlauf (Eds.): Handbook of Economic Growth. Elsevier, 2005, ch. 15th
  24. cf. including Jürgen Stark: On the importance of institutions in economic and financial development. public Inaugural lecture at the Eberhard Karls University in Tübingen on June 1, 2005, p. 13.
  25. See u. a. Hans-Bernd Schäfer, Claus Ott: Textbook of the economic analysis of civil law. 2005, p. 523 ff.
  26. ^ Douglass C. North: Institutions, Institutional Change, and Economic Performance. 1998, pp. 65, 71, 81 and 160 f.
  27. Reinhold Zippelius: Philosophy of law. § 23 III.
  28. For other functions of publicity see Reinhold Zippelius: Allgemeine Staatslehre. 17th edition. 2017, § 23 II 7.
  29. Reinhold Zippelius: Philosophy of law. § 23 IV.
  30. cf. BVerfGE 49, 148 , 164; BVerfGE 87, 48 , 65.
  31. cf. BVerfGE 93, 99 , 108.
  32. BVerfG, decision of April 30, 2003, Az. 1 PBvU 1/02, (full text) , paragraph no. 64.
  33. BVerfG, decision of April 25, 2015 - 1 BvR 2314/12 - Rn. 13 BvR 2314% 2F12
  34. Ulf Bernitz et al. (Ed.): General Principles of EC Law in a Process of Development. 2008, p. 54. (