The Shifting Meaning of Legal Certainty in Comparative and Transnational Law

The principle of legal certainty is of fundamental importance for law and society: it has been vital in stabilising normative expectations and in providing a framework for social interaction, as well as defining the scope of individual freedom and political power. Even though it has not always been fully realised, legal certainty has also functioned as a normative ideal that has structured legal debates, both at the national and transnational level. This book presents research from a range of substantive areas regarding the meaning, possibility and desirability of legal certainty in the context of a rapidly changing global society. It aims to address these issues by bringing together scholars from various jurisdictions in order to examine changes in the shifting meaning of legal certainty in a comparative and transnational context. In particular, the book explores some of the tensions that now exist between the conventional expectation of legal certainty and the various challenges associated with regulating highly complex, late modern economies and societies. The book will be of interest to lawyers concerned with understanding the transformation of core rule of law values in the context of contemporary social change, as well as to political scientists and social theorists.-- Provided by Publisher Preface Contents List of Contributors The State of the Art and Shifting Meaning of Legal Certainty Introduction Definitions of Legal Certainty Review of Focus and Scope of Previous Literature The Shifting Meaning of Legal Certainty Overview of Contributions Conclusion Part I: Theoretical Perspectives (‘Certainty of Law’) 1 Legal Certainty and the European Courts: Accessibility and Legitimate Expectations as Standards of Reasonableness Introduction The Shift from a Static to a Dynamic Concept of Legal Certainty A Dynamic Concept of Legal Certainty: Fundaments, Functions and a Portrayal of Man Legal Certainty in the Case Law of the European Courts Conclusion 2 Legal Certainty in the Context of Multilingualism Introduction Making Sense of Multilingual Law at the Court The Unpredictable Principle of Legal Certainty Towards Discursive Legal Certainty Concluding Remarks 3 Legal Certainty in the New Corporate Criminal Law Introduction Net-widening and the New Corporate Criminal Law The Multiple Uncertainties of the New Corporate Criminal Law The Changing Meaning of Legal Certainty, Legal Risk and Social Enforcement Conclusion 4 Economic Analysis of Law and Wilburg's Flexible System: A Systematic Approach to European Tort Law Introduction The Status Quo: Tort Liability in Europe The Theory of the Flexible System and the Economic Theory of Tort Law Critical Analysis and Conclusions Part II: Comparative Perspectives 5 Comparative Legal Certainty: Legal Families and Forms of Measurement Introduction Background: Why are Scholarship and Practice Interested in Country Differences in Legal Certainty? Traditional View: the Civil Law Advantage over the Common Law Challenges to the Traditional View Does Quantitative Research Provide the Answer? Conclusion 6 The Faces and Implications of Legal Certainty in Contemporary Private Law-A Comparative Law Perspective Introduction General Remarks on Legal Certainty in a Private Law Context Examples of Legal Certainty Concluding Remarks 7 Legal Certainty: A Common Law View and a Critique Introduction Conceptualism versus Realism Conceptual Versus Instrumental Predictability Conclusion 8 Measuring Legal Certainty? Critical Feedback about the Development of an Index of Legal Certainty Introduction Implementation of the Project Major Challenges for the Working Group Conclusion Part III: Transnational Perspectives 9 Clashing Legal Certainties: The Danish Supreme Court's Ruling in AJOS and the Collision between Domestic Rules and EU Principles Introduction The Ajos Case Between Conformity and Legal Certainty Domesticating the European Question: Danish Constitutional Limits Explaining Ajos Conclusion 10 Towards Appropriate Legal Certainty for Consumers Seeking Justice in a Globalised World Introduction Transnational Consumer Law Enforcement of Consumer Law Small Claim Courts/Procedures Collective Redress/Class Actions Alternative Methods for the Resolution of Consumer Disputes Online Resolution of Ordinary Disputes Conclusions 11 Legal Certainty and Abuse of Loopholes in the Context of Transnational EU Company Law Introduction Remarks on Legal Certainty in the Context of EU Law 'Law Evasion' in Transnational EU Company Law-the Example of Shell Companies The Court of Justice's Approach towards the Freedom of Establishment and Shell Companies Application of the EU Legal Framework to 'Overseas Companies' Conclusions Part IV: Applied Perspectives (‘Certainty through Law’) 12 Legal Ambiguity in Corporate Governance Introduction Conceptual and Developmental Ambiguities in the Corporate Governance System The UK Corporate Governance Code Neoliberal, Reflective Regulation and Soft Law Limitations Conclusion 13 The Right of Withdrawal in Consumer Contracts: From the Perspective of Legal Certainty Introduction Current State of the Right of Withdrawal in Distance Selling The Substantive Role of Legal Certainty Conclusion 14 Advertising Regulation in Japan: Legal Certainty and its Relation to Consumer Law Introduction General Regulation of Advertising Individual Regulation of Advertising Self-regulation Final Remarks and Future Issues Index The state of the art and shifting meaning of legal certainty / Mark Fenwick, Mathias Siems and Stefan Wrbka -- Legal certainty and the european courts : accessibility and legitimate expectations as standards of reasonableness / Patricia Popelier -- Legal certainty in the context of multilingualism / Elina Paunio -- Legal certainty in the new corporate criminal law / Mark Fenwick -- Economic analysis of law and wilburg's flexible system: a systematic approach to european tort law / Monika Hinteregger -- Comparative legal certainty : legal families and forms of measurement / Mathias Siems -- The faces and implications of legal certainty in contemporary private law : a comparative law perspective / Stefan Wrbka -- Legal certainty : a common law view and a critique / John Linarelli -- Measuring legal certainty : critical feedback about the development of an index of legal certainty / Jonas Knetsch -- Clashing legal certainties : the Danish supreme court's ruling in AJOS and the collision between domestic rules and EU principles / Mikael Madsen and Henrik Palmer Olsen -- Towards appropriate legal certainty for consumers seeking justice in a globalised world / Geraint Howells and Mateja Durovic -- Legal certainty and abuse of loopholes in the context of transnational EU company law / Lisa Jost, Gabriel Lentner, Thomas Ratka and Stefan Wrbka -- Legal ambiguity in corporate governance / Charlotte Villiers -- The right of withdrawal in consumer contracts : from the perspective of legal certainty / Yo Terakawa -- Advertising regulation in Japan : legal certainty and its relation to consumer law / Kunihiro Nakata