The Principle of Juridical Certainty and the Discontinuity of Law

Pages:1241-1243
Author:María Elena Lauroba Lacasa
Position::Professor, Secretary General, University of Barcelona
SUMMARY

I. Introduction. The Juridical Certainty As An Explicit Principle Of The 1978 Spanish Constitution II. Certainty As An Objective Demand Of Knowing The Legality A. The Publicity Of The Law. B. The End Of The Effect Of A Law. C. Succession Of Laws. Retroactivity And The Transitory Law. III. The Juridical Certainty As Predictability Of Judicia Decisions IV. Certainty And Change: The Social Reality... (see full summary)

 
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This is an abstract from El principio de seguridad jurídica y la discontinuidad del derecho. The authenticity of this article was ascertained only by the author.

Professor, Secretary General, University of Barcelona.

I. Introduction. The Juridical Certainty As An Explicit Principle Of The 1978 Spanish Constitution

Juridical certainty is shaped as an explicit concept in the 1978 Spanish Constitution (SC). The preamble refers to it as the guiding principle of the entire legal order, a fundamental legal instrument for achieving the higher values of the system, and even an intermediate value that is to be followed in order to guarantee the consistency of the legal system.

Juridical certainty is a sum of certainty and legality, hierarchy and normative publicity, interdiction of the arbitrary, and absence of the retroactivity of the less favorable. The sum of these principles allows it to freely promote justice and equity.

II. Certainty As An Objective Demand Of Knowing The Legality

Lawmakers must establish the time during which a law is in force, starting with the moment that the law comes into effect and the moment it loses its effects. Thus, this section analyses art. 2 CC, which sets the chronology of the norms and describes the problems that cause a bad technical regulation.

A. The Publicity Of The Law.

Art. 2.1 CC: "A law comes into effect twenty days after its complete publication in the Official Gazette, if the norm itself does not stipulate otherwise."

B. The End Of The Effect Of A Law.

There are several mechanisms that cause a norm to lose its effect. These are: abolition, as the main technique; nullity, in direct relation with its being declared unconstitutional; loss of validity; and suspension.

C. Succession Of Laws. Retroactivity And The Transitory Law.

The next question is how to set the succession of the norms, and exactly what law needs to be applied, in order to avoid conflicts between repealed and repealing laws. The answer is found in art. 2.3 CC: "Unless it stipulates differently, the norm will not be applied retroactively." The legislator can, however, give a law retroactive effect in certain circumstances, as long as it does not conflict with the limitations provided in the Constitution. Two concepts must be developed: 1) the operated retroactivity, distinguishing between maximum, medium and minimum retroactivity, and 2) the limitations provided by constitution. Art. 9.3 SC bans the retroactivity of the non- favorable penalty provisions....

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