Wednesday, November 4, 2015

Legal Certainty - China scores well in French study

People often ask me `Is there law in China?'  They have in mind the Cultural Revolution, or Communist rule by terror and decree, or a sense that things are out of control there - images of Beijing smog come to mind.

But China of course has a long tradition of order, both ethical (Confucian) and governance (Emperors and the educated Mandarinate).  Business planners wnat to know whether you can predict how you will fare.  for that the concept of : legal certainty" has developed.  French scholars have developed an Index of Legal Certainty (link above).  Norway is followed by Germany, with China at five and the U.S. just above Brazil at twelve and thirteenth positions. - gwc
Index of Legal Certainty - Civil Law Initiative - Universite Pantheon Assas II - Paris
No system of law would claim insecurity as a base and objective. But while every legal system aims at security, such security is social, political and economic. Legal certainty is from this viewpoint a term used exclusively by legal specialists, mainly from the civil law tradition, to describe the basis and objective of a legal system. Under these conditions it would seem difficult to try to conceptualise legal certainty and give it an unequivocal “purely” legal definition. But although the definition and scope of legal certainty are difficult to establish, its components do not seem impossible to grasp nor its measure impossible to take despite its extent, which is necessarily partly subjective, and despite the fact that it relates to values that may not all be measurable.

Legal certainty represents the qualitative value of a legal system resulting from demands “in terms of the quality of standards and the quality of the interpretation judges give them” .
The many studies devoted to legal certainty (which remains an expression used more in systems in the civil law tradition), like the work  undertaken to establish the vocabulary, tend to explain legal certainty in terms of four virtues. Legal certainty implies that laws should be at least accessible, intelligible and stable and have predictable effects, i.e. both knowledge of the legal rule and its control over time

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