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Uncertainty of law as a factor in the stability of legal system (historical example of the USA)

Annotation

Certainty in law is a category that is ambiguously perceived by the scientific legal community. We make an attempt to analyze the meaning and role of the category of certainty in the process of creating a stable legal system with historical continuity. On the example of the US and France legislation, we give polar examples of the implementation of certainty of lawprinciple. We conclude about the undoubted usefulness and necessity of preserving this principle in the Russian legal system. However, a study of the French experience of legal regulation has shown that the desire for certainty, achieved through an overly detailed regulation of public relations, only creates additional problems of interpretation and law enforcement, strengthening legal nihilism and citizens' distrust of law. At the same time, the American model, implying some uncertainty of law, has shown its effectiveness in its historical example. The ambiguity and framework nature of the American Constitution and basic federal laws makes it possible to interpret and concretize their provisions in judicial precedents in different ways, depending on the era and socio-political situation, which contributes to the flexibility and stability of the US legal system. In conclusion, it is noted that domestic legislators need to strive for a gradual transition to the American model of implementing the principle of certainty of law, while providing for detailed regulation of public relations at the level of bylaws. Such an approach will preserve the historical continuity and existence of basic normative acts for several decades, preserve the stability and predictability of legal regulation.

Keywords

originality, US Constitution, certainty of law, uncertainty of law, state, US law, Living Constitution

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DOI

10.20310/2587-9340-2021-5-18-235-243

UDC

340

Pages

235-243

References

1. Merryman J.H. The civil law tradition. Stanford (California), 1969, 168 p. 2. Gilmore G. Commercial Law in the United States: Its Codification and Other Misadventures, in Aspects of Comparative Commercial Law: Sales, Consumer Credit, and Secured Transactions. Quebec, McGill University Publ., 1969.

Received

2021-03-27

Section of issue

General theory and history of law and the state

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