Legal certainty is one of the «grand recites» of the law. As far as legal certainty is not conceived any more as a fact by lawyers, predictability and controllability are not properly substitutes for certainty because, logically, the first two are possibilities in the future, whereas the latter is a fact in the present. The ideological character of certainty is particularly clear in the construction of truth during the trial. Under a sociological point of view, Max Weber shown that the determination of facts is a matter of selection. Selections as well as decisions are subjective by nature: They are contingent and therefore uncertain. Legal certainty is nonetheless a necessary condition of possibility for people’s trust in the law.
Incertezza del diritto e determinazione dei fatti / Belvisi, Francesco. - In: ARS INTERPRETANDI. - ISSN 1722-8352. - 8:1(2019), pp. 15-30. [10.7382/93837]
Incertezza del diritto e determinazione dei fatti
Francesco Belvisi
2019
Abstract
Legal certainty is one of the «grand recites» of the law. As far as legal certainty is not conceived any more as a fact by lawyers, predictability and controllability are not properly substitutes for certainty because, logically, the first two are possibilities in the future, whereas the latter is a fact in the present. The ideological character of certainty is particularly clear in the construction of truth during the trial. Under a sociological point of view, Max Weber shown that the determination of facts is a matter of selection. Selections as well as decisions are subjective by nature: They are contingent and therefore uncertain. Legal certainty is nonetheless a necessary condition of possibility for people’s trust in the law.
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