Legal Certainty: A Common Law View and a Critique
The aim of this chapter is to aid us in getting clear on the meaning of the concept of certainty in the common law tradition and the role of the concept in that tradition. To strive for clarity, we need to explore some relatively recent intellectual history about how the common law tradition diverged in approach between England and the United States in the twentieth century. Section I provides that intellectual history. It outlines in brief the split in the common law tradition that occurred in the early twentieth century between English conceptualists and American legal realists. The result is a now a demarcation between two sub-traditions within the common law tradition itself, one English and the other American. At the centre of this divergence was a dispute about the meaning of legal certainty. Section II goes over how the more contemporary and tractable concept is predictability, but the divergence in traditions has resulted in two different versions of predictability, one conceptual and about the logical form of legal rules and the other instrumental, about the move of legal rules towards meeting standards of economic efficiency. English and American lawyers appear to agree that the law should be predictable, though they may give predictability a different meaning depending on the context.
John Linarelli, Legal Certainty: A Common Law View and a Critique, in THE SHIFTING MEANING OF LEGAL CERTAINTY IN COMPARATIVE AND TRANSNATIONAL LAW (Mark Fenwick, Mathias M. Siems, & Stefan Wrbka, eds., 2017).
Oxford: Hart Publishing