It has become frequent that certain decisions of jurisdictional bodies, particularly those of a specialized nature such as the National Jury of Elections, leave legal doubts and uncertainties. Therefore, it is necessary to write about legal certainty. This purpose is consubstantial to the Rule of Law, since it sponsors the consolidation of the normal development of the members of the political community and particularly to the free development of the personality of the citizens. This is implicitly recognized in the Constitution and seeks to ensure in favor of the individual, an environment in which the actions of the State and citizens can be reasonably foreseen within the limits of the law in the broad sense of the term. Its validity generates certainty about the legal rules applicable to coexistential situations, as well as the interests legally protected by it. As an expression of a basic guideline, it entails an end (achievement of a state of affairs), through a plurality of conducts necessary for its attainment.
Humberto Ávila[Teoría de la seguridad jurídica. Madrid: Pons, 2012], points out that legal certainty is associated with the criteria of determination, stability and possibility.
Norberto Bobbio [«¿La certeza del derecho es un mito?». En: Revista Internacional de Filosofía del Derecho, N° 28, 1951], expone que es una exigencia de coexistencia ordenada, y, por ende, un elemento intrínseco del derecho.
In this context, the presence of legal certainty helps to formally confront administrative, political and legal arbitrariness. Legal certainty, as an end of law, reinforces and complements the enjoyment of the fundamental rights of the person. It represents the existential minimum that allows the development of the dignity of the person and makes possible, with certainty and without surprises, the conviction of being what one wants and can be; that is, the unfolding of life in its different manifestations. This raises the predictability of the consequences of our actions, and the predictability and effectiveness of the defense mechanisms against arbitrariness. As an expression of a guarantee, it operates both in relation to the exercise of state power and in the sphere of the discretion and regulated autonomy of individuals.
Legal certainty in its positive aspect expresses certainty; in its negative aspect it imposes the use of the law as a defense mechanism against arbitrariness.
The Constitutional Court in the case of Luis Patroni Rodríguez (Case No. 01546-2002-AA/TC), has pointed out that the predictability of the State's conduct, or more generally the consequences of citizens' acts, is a safeguard to organize personal life under the protection of the law and an affirmation of the prohibition of arbitrariness.
Humberto Ávila [ob. cit.] points out that legal certainty is based on cognoscibility as a guarantee of access to the content and scope of the norms; reliability as a guarantee of compliance and stability; calculability as a guarantee of subjective determination and prognosis of the concrete legal consequences in the event of compliance or non-compliance with the norms.
The Constitutional Court in the case of Colegio de Notarios del Distrito Notarial de Lima (Case No. 0001-003-2003-AI/TC), has stated that its constitutional recognition appears through inductive means. This is due to the fact that said text states the following:
«Artículo 2.-
Every person has the right:
[...]
- To personal liberty and security. Consequently:
- a) No one is obliged to do what the law does not command, nor prevented from doing what the law does not command, nor prevented from doing what the law does not prohibit.
[...]
- d) Nadie será procesado ni condenado por acto u omisión que al tiempo de cometerse no esté previamente calificado en la ley, de manera expresa e inequívoca, como infracción punible; ni sancionado con pena no prevista en la ley».
«Artículo 139.-
These are principles and rights of the jurisdictional function:
[...]
- Observance of due process and judicial protection.
Ninguna persona puede ser desviada de la jurisdicción predeterminada por la ley, ni sometida a procedimiento distinto de los previamente establecidos, ni juzgada por órganos jurisdiccionales creadas al efecto, cualquiera sea su denominación».
Strictly speaking, the protection offered to the individual, in the sense that the actions of those who exercise power will correspond to the prevailing legal order; and that, therefore, his rights, property and life project will not be threatened or violated.
Legal certainty indicates the State's commitment to state or citizen action subject to the principle of legality, as well as to protection, reparation or redress in the event of acts contrary to the legal system.
Legal certainty can be classified as follows: objective and subjective.
For the reasons stated above, we will deal with the second of the above.
1.- Subjective legal certainty
It refers to the set of agencies and the plethora of public officials who, with their efficiency, effectiveness, morality and legality, generate a kind of intimate confidence in the certainty of their protection and redress in favor of individuals, in a given space and time.
This psychological conviction is inspired by compliance with the following principles:
- Efficiency. This is the principle that defines and ensures compliance with legal policies and goals, in two dimensions: qualitative and quantitative. This basic guideline recognizes the intimate relationship between the proposed objectives and the results obtained.
- Efficiency. It is the principle that allows establishing an optimal relationship between the resources used and the results obtained in legal matters.
- Morality. It is the principle that ensures the correct exercise and proper use of power in judicial, administrative, police, etc. matters.
- Legality. It is the principle that ensures the defense of the legal order and the rights it declares in favor of citizens.
The presence of these principles within the organs linked to justice and, in particular, in the conduct of the public officials assigned to them, promotes the certainty of the full exercise of citizens' rights, as well as the conviction of the feasibility of their reestablishment, redress and punishment, if applicable, in a particular and concrete situation of violation.
Institutionality and subjective legal certainty
At the institutional level, our legal system promotes subjective legal certainty through the existence of the following entities:
- a) Jurisdictional power
Its purpose is to settle inter-individual conflicts. In this sense, the Judicial Power has the following attributions:
- Care for the respect of the Constitution.
- The reestablishment of the legal order when its violation is perpetrated.
- The reparation of the individual right when its disregard is perpetrated.
- Repression of crimes that alter the legal order.
- b) Police power
Its purpose is to channel the freedoms of citizens for the purpose of ensuring public order. The law guarantees the freedom of each individual to fulfill his destiny; however, the limitations for the benefit of all, imposes duties for all and with all. It is the state action destined to protect, preventively and repressively, the physical integrity of the people, their patrimony, etc. Its object is manifested in the following aspects:
- Integrity defense (prevention against personal injury).
- Security defense (prevention against disorders or disturbances).
- Health protection (prevention of disease risks).
- Defense of public morals (prevention against acts repugnant to conscience).
The generic concept of public order includes the set of rules established to preserve the safety of persons and their property, as well as their physical and moral integrity. Strictly speaking, it is the set of needs required for social-ethical existence. It is a conglomerate of predominant legal, political, economic and moral principles, which are indispensable for social coexistence, and which are not subject to the convention or will of individuals.
- c) Administrative justice
It materializes a set of guarantees that the State grants to citizens in their relations as users of public services. It makes possible the resolution of a controversy arising between the providers of a public service and the users of the same; such is the case of institutions such as Indecopi and the Mining Council.
3.- By way of conclusion
The notion of subjective security is not antagonistic to objective security. Both are harmoniously integrated: there can be no security in law if there is no security through law. There can be no conviction and inner certainty in the citizenry without the presence of stability, generality, clarity and guarantees of a normative nature.
Legal certainty secures two fundamental situations for the individual within the community:
- It establishes a clear, notorious and certain margin of personal action within the community.
- It establishes a margin of limitation to the action of the community's rulers.
Mario I. Álvarez[Introducción al derecho. Mexico: McGraw-Hill, 1995], states that legal certainty produces in social reality an environment within which people can act with free will and legal protection, thus contributing to the sustained exercise of freedom; thus, as Ángel Latorre[Introducción al derecho. Barcelona: Ariel, 1984] points out, through it, law becomes the collective order of social freedom.
As an end, legal certainty is an instrument at the service of a value: justice.
