THE PRINCIPLE OF LEGAL CERTAINTY AND REASONABLENESS IN JUDICIAL LAW: ANALYSIS OF THEORY AND PRACTICE

Abstract

The reasoning of court decisions addresses current issues of concern to judges in Europe, such as due process, transparency and legal certainty. A good understanding of judgments allows litigants to plan their cases with a stable jurisprudence in mind. For this reason, stability and uniformity of case law remain the foundations of the case law system in English law. However, as the stability of case law can also be a factor of rigidity, judges can justify their decisions to deviate from existing rules (the so-called “bifurcation of cases” technique). However, in the context of the increased demand for legal certainty and in the absence of codes, case law itself should be this fixed part of the law.International law places great emphasis on transparency and legal certainty. If judges are so clear about their reasons for doing so, it is because they are aware that their decisions will form a stable basis on which individuals will make their predictions and organise their affairs (at least in private law). Aware that their decision will be a reference point for other judges and for the whole legal community (and society as a whole) in the future, the English judge reasons their decision to meet the expectations and needs of their own legal system. Each system strives to achieve its own balance; English lawyers and judges are not frightened by the spectre of summary judgments because every judgment is a construct based on inductive reasoning. The highly complex reasoning is a source of intellectual richness for academic lawyers, but may seem objectionable from a layman's perspective. The comparative law perspective allows us to understand the vices and virtues from an external and relativised perspective.