Discontinuity of Law and Legal Security

AuthorNicolas Molfessis
PositionProfessor, University Paris Panthéon Assas
Pages1305-1307

Page 1305

This is an abstract from DiscontinuitÈ du droit et sÈcuritÈ juridique. The authenticity of this article was ascertained only by the author.

Professor, University Paris PanthÈon Assas.

There exists, it would appear, a total incompatibility between the two words that make up the title. Legal security, a basic assumption, calls for continuity in the law. It banishes ruptures and revolutions, the oversight of the past and all forms of abolition. It condemns the loss of memory as much as the convulsive movements of the law. Considered from that point of view, one would not be surprised that it had been raised, by Roubier, to the status of "first social value to reach," to the point that the author could state that "where this essential value, legal security, has disappeared, there is no longer any value which can remain; the very word 'progress' becomes meaningless and even ridiculous, and the worst injustices multiply with the disorder that settles in." Legal security requires, before anything else, respect for past legal situations. It is so fundamental that, without any doubt, it is the foundation of the existence of a principle of continuity in the law which persists "through the changing forms of the State."

Though it is the enemy of discontinuity, legal security does not, by the same token, call for stagnation or steadfastness. Although it seeks stability, it can also require change, whenever it becomes the condition for adjusting the rule of law to the social, economic and political circumstances. It calls also, therefore, for the progressive movement of the law, but a movement that is measured and controlled, a movement that illustrates, if not the hold of the law on the time, at least its persistence beyond the convolutions of history and events. In this respect, legal security is assuredly the basic need. It makes up the first order of the law without which the temporality of actions and behaviours is negated and erased in defiance of any foreseeabiltiy.

Such a requirement could not remain on the level of the principles of elementary natural justice. In the international order, legal security has been upheld by the courts entrusted with enforcing the respect of principles and rights of a value superior to that of legislation. The European Court of Justice has stressed its importance to the point of referring to it as "a fundamental requirement," to which the ECJ added the principle of the protection of "legitimate...

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