S.

Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

TOWARDS A NEW PARADIGM OF LEGAL CERTAINTY

Stefano Bertea

Abstract
In this essay I critically address and compare two alternative theories of legal
certainty. To begin with, I introduce the positivist theory, which will be argued
to be historically important and theoretically insightful but also based on
questionable assumptions and leaving central aspects of legal certainty
unexplained. This justifies the discussion of a different approach to legal
certainty, one that can be developed by building on the fundamental tenets
underpinning what is here called the argumentation-based account of law. This
alternative view brings forward dimensions of legal certainty that are either
completely neglected or underexposed in the positivist treatment. In particular, I
argue that embracing the argumentation-based account of law forces upon us a
procedural and rationalist notion of legal certainty which has a complex (and
bivalent) relation with another fundamental legal ideal, justice.

Keywords
Legal certainty, positivism, non-positivism, theory of legal reasoning,
argumentation, justice.

A. INTRODUCTION

Law and certainty are widely regarded as conceptually connected. By subjecting

action to normative standards, the law limits the range of permissible conduct,
thus reducing social contingency and superimposing an order on human
interactions that would otherwise be less predictable and even potentially
chaotic. So the very act of setting up a legal order reflects, among other things,
a demand for certainty. 1 In addition, qua instances of practical authority, legal


My indebtedness goes to those scholars who have supplied helpful comments to previous
versions of this essay: I should therefore like to thank Francesco Belvisi, George Pavlakos, and
the anonymous reviewers of this journal. Needless to say, responsibility for the views
expressed herein, as well as for any errors of form or content, rests solely with me.
1
This aspect is explored in some detail in Z Bańkowski, Living Lawfully: Love in Law and Law
in Love (Dordrecht, Kluwer, 2001), at 39–42. See also E Christodoulidis, “The Irrationality of
Merciful Legal Judgement: Exclusionary Reasoning and the Question of the Particular” (1999)
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

systems owe part of their justification to their ability to secure coordination by

increasing the certainty of social relationships. Since the absence of legal
provisions would make anticipating the actions of others more difficult and
drastically curtail our ability to coordinate with one another, law can be
conceived as a device that sets up and protects a general framework of
expectations on which social actors can rely with a reasonable degree of
certainty.2 Certainty, thus, is not just one among several ideals by which legal
practices can be assessed; it is rather a fundamental value of the legal domain.
No well-developed system of laws can ignore altogether the principle of
certainty because no legal order can fulfil its essential tasks and be regarded as
legitimate unless its requirements (or a core set of them) are certain.
A distinctive legal feature, certainty has attracted the attention of many scholars
from the most diverse theoretical backgrounds. Yet, the extensive treatment
legal certainty has received is double-edged. On the one hand, we owe it to the
efforts of so many scholars if we now have a better understanding of the
concept, scope, basic traits, and limits of certainty. On the other, it is hard to
even define legal certainty without begging some questions, for in no way is
there anything like a widely shared notion of certainty in law; rather the wide
range of definitions of legal certainty in the literature has called into question a
range of issues such as the possibility of knowing the exact content of legal
provisions, the oneness of legal qualifications, the predictability of legal rulings,
the possibility of being aware in advance of how legal decisions are taken, the
stability of law over time (or continuity of law), the official certification of facts
and statuses, and the non-retroactive force of laws. This list, which is far from
complete, suffices to show that certainty covers conceptually heterogeneous
legal issues, the significance of which varies with each school of legal thought.
The variable significance of legal certainty emerges most clearly in Jürgen
Habermas’s work, for instance, where it is argued that whilst some legal theories
—such as those sharing the assumptions underlying legal hermeneutics and
legal positivism—acknowledge the theoretical importance of legal certainty,
“from the point of view of Legal Realism, the Freirechtsschule (“Free-Law”
School), and Interest Jurisprudence, one can no longer clearly distinguish law
and politics in terms of structural features” to the effect that “it no longer makes
sense to hold that consistent decisions based on a system of sufficiently
determinate norms can secure legal certainty.” 3 Habermas’s statement shows
that for some schools of legal thought discussing legal certainty is not only
pointless but reveals a wrong understanding of nature and functioning of law.
18 Law and Philosophy, 233–236, and N MacCormick, “Ethical Positivism and the Practical
Force of Rules” in T Campbell (ed), Judicial Power, Democracy and Legal Positivism
(Aldershot, Asghate, 2000), 47.
2
For an introduction to this argument, see L Green “Law, Legitimacy, and Consent” (1989) 62
Southern California Law Review, 804–808, among others.
3
J Habermas, Between Facts and Norms (Cambridge, Polity, 1992), 201.

2
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

The investigation of certainty should, hence, be of no concern to legal theorists

and be abandoned altogether.
The preceding remarks provide some reasons to believe that the search for
an overarching idea of legal certainty—a concept shared by different legal
theories—is to a large extent illusory. Legal certainty should be regarded as an
intrinsically theory-laden notion, which needs to be discussed in relation to
particular theories, and not treated as a largely pre-theoretical idea. This is what
I intend to do in this essay where I critically address and compare (not legal
certainty as such, but rather) two theories of legal certainty. My argument will
proceed as follows. In Section 2 I present and discuss the traditional theory of
legal certainty. The aim of the reconstruction of the traditional approach to legal
certainty carried out in Section 2 is twofold: not only do I mean to introduce the
reader to the main successes and shortcomings of the traditional paradigm, but
also I intend to clarify the starting points from which an alternative paradigm
has progressively emerged. 4 Because in most Western countries legal positivism
has been the most influential conception of law for at least a couple of centuries
and has so deeply affected modern legal thought as to become part of
practitioners’ common sense, by “traditional theory of legal certainty” I mean
the treatment legal certainty undergoes within legal positivism. 5 Paying specific
and careful attention to the positivist theory of legal certainty is justified by two
principal (sets of) reasons. To begin with, historically, certainty has become a
central issue in legal theory especially since legal positivism established itself as
a leading theory of law also in the wake of the modern codifications. Moreover,
legal positivism has contributed decisively to spelling out some of the
fundamental traits of certainty in law, such as its epistemic dimension, ideal
quality, and instrumentality to protect citizens against the most blatant abuses of
those in power. Historically important and theoretically insightful as it
undoubtedly is, the positivist treatment will be seen to be based on questionable
assumptions, leaving central aspects of legal certainty unexplained. This
justifies the introduction of a different approach to legal certainty, one that can
be developed by building on the fundamental tenets underpinning what is here
called the argumentation-based account of law. This alternative view—which is
grounded on the thesis that deliberative reasoning, namely, the reasoning that is
not entirely governed by legal rules, is a defining component of law and so
enters the very concept of law (let us call it the “argumentation thesis”)—brings
forward dimensions of legal certainty that are either completely neglected or
4
The composite aim of this reconstruction supplies also the justification of its length: an
introduction to the main traits of the traditional view of legal certainty, which is not limited to
the features that have been criticised by alternative approaches, adds to the clarity of
exposition, although it incorporates points that are only indirectly relevant to the central
argument subsequently deployed in this essay.
5
Hence, hereafter the qualifiers “positivist” and “traditional” will be used as roughly
equivalent.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

underexposed in the traditional treatment. The view of legal certainty that can
be derived from the acceptance of the argumentation thesis will be the concern
of Section 3, where I intend to show that embracing the argumentation-based
account forces upon us a procedural and rationalist notion of legal certainty
which has a complex (and bivalent) relation with another fundamental legal
ideal, justice. This discussion will pave the way for some conclusive
considerations (Section 4), which are aimed at establishing a possible affinity
between the perspective of legal analysis underlying the argumentation-based
account and the core insights of Legisprudence.

B. THE TRADITIONAL THEORY OF LEGAL CERTAINTY

For the past two centuries the dominant view in Western legal theory has been
legal positivism. In its many varieties, contemporary legal positivism may be
said to rest on two fundamental tenets: the separability thesis and the social-fact
thesis. The separability thesis can be framed as a jurisprudential statement in the
negative, one that denies any conceptual connection of content between the
standards of legality and critical morality. 6 As Herbert Hart puts it, “it is in no
sense a necessary truth that laws reproduce or satisfy certain demands of
morality.”7 The social fact thesis, a contention in the positive, makes a claim
about the conditions for the existence of law, saying that law is grounded in
social facts. By instantiating the view that the criteria of legal validity get their
authority from social facts, the social fact thesis construes law as an artefact—a
social construction—rather than as a natural kind. 8 The separability thesis and
the social fact thesis are interwoven to ground the positivist statement of the
autonomy of law: law pertains to an autonomous sphere of practical reason and
consists mainly of a catalogue of requirements which institutions having
appropriate competence produce in observance of proper procedures. 9 In this
6
On the separability thesis, see J Coleman, The Practice of Principle (Oxford University Press,
2001), 151–152, and K E Himma “Inclusive Legal Positivism” in J Coleman and S Shapiro
(eds), The Oxford Handbook of Jurisprudence and Legal Philosophy (Oxford University Press,
2002), 135–136. The separability thesis constitutes the core of “negative positivism.” On the
notion of negative positivism and the distinction between negative and positive positivism, see
J Coleman, “Negative and Positive Positivism” (1982) 11 The Journal of Legal Studies, 139–
164.
7
H L A Hart, The Concept of Law (Oxford University Press, 2nd edn, 1994), 185–186.
8
On the social fact thesis, see K E Himma, “Inclusive Legal Positivism”, supra, n 6, 126–129.
9
The idea that law is autonomous from other spheres of practical reason is a central tenet of
positivist theories. The positivist insistence on the autonomy of law emerges paradigmatically
in J Waldron, “The Irrelevance of Moral Objectivity” in R P George (ed), Natural Law Theory
(Oxford University Press, 1992), 160, for instance, who claims that “law can be understood in
terms of rules and standards whose authority derives from their provenance in some human

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 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

way legal positivism regards the law as an institutional reality that is constituted
by directives we can identify simply by looking at a rule of recognition accepted
in a given community and able to determine what acts can legitimately create
law.
Although legal positivism cannot be reduced to these core claims alone, for that
would oversimplify what is actually a sophisticated view, 10 it is not arbitrary to
impute to legal positivism the theory of legal certainty put forward by the
scholars who accept those basic tenets. Such a theory of legal certainty can be
concisely reconstructed in the following terms. On the positivist account, legal
certainty is defined as the possibility of knowing in advance what legal
consequences will follow from one’s conduct. Typically, a legal system warrants
certainty by enabling citizens to know the meaning of legal directives; when
those directives form the most important standards for the resolution of legal
disputes, their knowledge also enables citizens to know beforehand how
authorities will use their coercive powers, with consequent implications for
individual behaviour. Thus, law is certain if the contents of general legal rules
are knowable in advance and public officials apply those rules uniformly and
constantly to the effect that legal decisions can be said to be roughly
predictable.11 Certainty in law is thus associated with uniform treatment,

source, sociologically defined, and which can be identified as law in terms of that provenance.
Thus statements about what the law is—whether in describing a legal system, offering legal
advice, or disposing of particular cases—can be made without exercising moral or other
evaluative judgement.”
10
Indeed, different varieties of legal positivism bring further claims into the view, claims that
are not all compatible: Witness the source thesis, the practical difference thesis, the
conventionality thesis (in both its weak and strong versions), and the incorporation thesis. The
source thesis amounts to the claim that “what is law and what is not is a matter of social fact”
(J Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979),
37), that is, it depends on social convention: Law depends entirely on conventional sources for
its validity, and hence is all based on sources. The practical difference thesis says that legal
norms must be capable of making a difference in our practical deliberation as individuals: they
must be able to motivate us to act differently from the way we would otherwise act. The weak
conventionality thesis says that the criteria of legal validity are specifically established by the
social convention that obtains among the officials of a given community: the standards of
legality are social facts and so are conventional. The strong conventionality thesis says that this
convention—the rule of recognition—can create an obligation to act on it. And last we have
the incorporation thesis, which says that the criteria of legal validity may include moral
standards, their inclusion being, however, only a possibility. These theses are so named and
defined in J Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis”
(1998) 4 Legal Theory, 381–425 and Id, The Practice of Principle, supra, n 6; S Shapiro, “On
Hart’s Way Out” in J Coleman (ed), Hart’s Postscript (Oxford University Press, 2001), 149–
191, K E Himma “Inclusive Legal Positivism”, supra, n 6, 125–165, and A Marmor “Exclusive
Legal Positivism” in J Coleman and S Shapiro (eds), The Oxford Handbook of Jurisprudence
and Legal Philosophy (Oxford, Oxford University Press, 2002), 104–124.
11
For such a definition see, for instance, Raz, The Authority of Law, supra, n 10, 210-214,
L Gianformaggio, Studi sulla giustificazione giuridica (Torino, Giappichelli, 1986), 155-169,
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

regularity, and predictability: a law that can be qualified as certain provides

uniform and entrenched generalizations that are relatively blind to the
specificity of individual cases. This definition frames legal certainty primarily
as an epistemic problem. The possibility to know the content of general and
abstract legal normative statements—i.e. a possibility that deploys at epistemic
level—is a necessary condition, albeit not a sufficient condition, for law to be
certain.
Thus understood certainty traditionally is regarded as a quality of a system
of laws over time, as opposed to a feature that single legal statements may
display, or fail to display, at a given point in time. Hans Kelsen’s discussion of
law and certainty throws light on this theoretical option. In his Pure Theory of
Law, Kelsen deals with legal certainty in the section devoted to the theory of the
dynamic aspect of law. 12 Considering the law to be “in motion” he scrutinises
the legal processes through which law is created, applied, and enforced. In this
part, law is conceived as a pyramidal system changing over time, a hierarchical
structure of provisions occupying different legal layers and so are differently
ranked (some, more specific, directives being subordinated to other, more
general provisions of higher order). According to the traditional view, then,
certainty should be investigated using a systemic and diachronic approach.
Hence, the main factors impacting on the certainty of law are system-related
and time-dependent, such as the quality, method, and style of legislating, the
frequency with which legal provisions are modified, the plurality and
interactions of legal orders, and the internal consistency, coherence, complexity
and autonomy of a legal system.
Among these determinants of legal certainty specific attention is paid to
legal language. Being a social construction that deploys linguistically the law
owes some of its characters to the language that frames it. The language-
dependence of legal certainty finds a clear statement in Herbert Hart’s theory.
Hart claims that inherent in any linguistic expression there is some degree of
uncertainty because language is open-textured: linguistic terms have a settled
core, the meaning of which is not under dispute, and a peripheral area, or
penumbra, the boundaries of which are less fixed and so more undetermined.
Therefore, there are “plain cases constantly recurring in similar contexts to
which general expressions are clearly applicable,” but also “cases where it is not
clear whether they apply or not.” 13 The connection obtaining between law and
language warrants that these traits of language are transmitted to law, which
will, then, present more certain settled areas, and areas where legal provisions
require highly discretional operations to be applied. So, “whichever device,
and L Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Roma-Bari, Laterza, 1989),
80-87.
12
H Kelsen, Pure Theory of Law (Berkeley and Los Angeles, University of California Press,
2nd edn, 1967), 67.
13
Hart, The Concept of Law, supra, n 7 , 126.

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 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

precedent of legislation, is chosen for the communication of standards of

behaviour, these, however smoothly they work over the great mass of ordinary
cases, will, at some point where their application is in question, prove
indeterminate.”14 Since determining the penumbra of meaning is not just a
matter of logic or of applying interpretive canons that are widely shared and
consistently used, the outcome of discretionary operations cannot be determined
in advance. In Hart’s framework of thought, hence, certainty is not an actual
trait of existing legal systems but rather a goal they must strive for. This does
not mean that law is necessarily uncertain, or that certainty of law is a myth.
The discretion due to the open texture of law must not disguise the fact that “the
life of the law consists to a very large extent in the guidance both of officials
and private individuals by determinate rules which, unlike the applications of
variable standards, do not require from them a fresh judgement from case to
case. This salient fact of social life remains true, even though uncertainties may
break out as to the applicability of any rule (whether written or communicated
by precedent) to a concrete case.” 15
This moderately sceptical attitude towards the possibility of achieving legal
certainty is shared by other theorists endorsing the traditional approach. Kelsen,
for example, considers certainty a legal ideal, not a trait that systems of law
necessarily possess: even well functioning legal systems count certainty among
their aims, rather than among their actual elements. Indeed, for Kelsen the
assertion that certainty characterises of necessity legal systems is revealing of
either a disingenuous or an ideological disposition, which arises “from the need
to imagine the law as a fixed system governing every aspect of human
behaviour, in particular the activity of law-applying organs, above all the
courts.”16 A legal system could provide absolute certainty only insofar as the
creation of law were completely centralised. However, in actual legal systems
law is at least in part judge-made. Existing legal orders, then, occupy an
intermediate space between completely centralised systems of law-creation and
informal systems: “between these two extreme types of a jurisdiction bound by
state legislation and a jurisdiction free of state legislation are (a) those types in
which a central legislative organ is established, yet the courts are authorized to
create not only individual norms within the framework of the general norms
created by the legislative organ but also … individual norms outside this
framework; and (b) that system in which the courts are authorized to create
general legal norms in the form of precedential decisions.” 17 In sum, existing
legal systems “represent different degrees of centralization or decentralization
of the law-creating function and thereby different degrees of the realization of
14
Ibid, 127-128.
15
Ibid, 135 (original emphasis).
16
H Kelsen, Introduction to the Problems of Legal Theory (Oxford University Press, English
translation of the original German edn, 1992), 84.
17
Kelsen, Pure Theory of Law, supra, n 12, 254.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

the principle of flexibility of law, which is in inverse relation to the principle of

legal security,” or certainty of law. 18 The upshot of this argument is that
certainty is to be acknowledged as an ideal corresponding to a specific
conception of the nature and functions of law.
Kelsen’s remarks further suggest that certainty does not follow an all-or-
nothing logic but is rather a property that legal systems present in different
degrees. This point is restated by Hart, who claims that “in fact all systems, in
different ways, compromise between two social needs: the need for certain rules
which can, over great areas of conduct, safely be applied by private individuals
to themselves without fresh official guidance or weighing up of social issues,
and the need to leave open, for later settlements by an informed, official choice,
issues which can only be properly appreciated and settled when they arise in a
concrete case. In some legal systems at some periods it may be that too much is
sacrificed to certainty ... In other systems or at other periods it may seem that
too much is treated by courts as perennially open and revisable in precedents.” 19
The statement of the non-absolute character of legal certainty is not meant to
deny the significance of certainty in law. In the traditional view, certainty is a
value worthy of special protection especially because, by enabling people to
know in advance the legal consequences of their action, it can play a central
role in protecting them from the abuses of those endowed with the power to
apply and enforce legal provisions. 20 A link is, thus, established between
certainty, on the one hand, and individualism, Rule of Law and liberal ideology,
on the other.
This link has been investigated in detail by Luigi Ferrajoli in an ambitious
work in which he builds a criminal law theory on a critical restatement of the
basic principles of liberalism and legal Enlightenment. Ferrajoli combines
“epistemological rationalism”—by which he means the belief that facts are
objectively knowable—and “ethical non-cognitivism”—the view that we have
no objective knowledge of values. An approach shaped by those views virtually
places any entirely evaluative use of power outside the realm of control: legal
certainty and so the protection that legal certainty can grant to individuals is put
at risk by the exercise of power entailing evaluations. The ideal of legal
certainty requires, thus, that the application of law does not proceed
independently of factual considerations, which, by virtue of their fact-related
component, can be assessed objectively and are thereby controllable. In
18
Ibid, 254.
19
Hart, The Concept of Law, supra, n 7, 130.
20
This dimension of legal certainty is emphasised in Raz, The Authority of Law, supra, n 10,
219. See also F A Hayek, The Constitution of Liberty (London, Routledge, 1960), 208, who
claims that “the importance which the certainty of the law has for the smooth and efficient
running of a free society can hardly be exaggerated. There is probably no single factor which
has contributed more to the prosperity of the West than the relative certainty of law which has
prevailed here.”

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 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

practical terms, this means that only some kinds of discretional power are
compatible with warranting certainty in law. By focusing in particular on
judicial activities, Ferrajoli claims that only the discretional uses of power
aimed at ascertaining evidence, providing legal qualifications to facts, and
settling the exact sanction for acts in breach of law are consistent with the
principle of legal certainty. Whereas these exercises of power are partly
evaluative, they present a distinctive cognitive component and so can be
subjected to control. 21 By contrast, whenever judges are empowered with the
function of filling gaps in law or giving precise contents to generic expressions
and open-ended terms they exercise forms of discretional power that are
completely detached from factual considerations and, as such, beyond control.
Therefore, no system of law can be considered certain insofar as it allows for
these sorts of judicial activities. 22
All these features, which the traditional account captures, constitute central
aspects of legal certainty. The importance of the positivist view for a correct
understanding of legal certainty can, thus, hardly be overemphasised. Yet, the
traditional characterisation of legal certainty is also flawed because it fails to
pay sufficient attention to the relationships holding between certainty and
reasoning in law. This shortcoming of the positivist account is mainly
determined by the nature of its enquiry, which is only marginally concerned
with the systematic study of the evaluative forms of reasoning that take place in
law, tending to regard any deliberative argumentative activity as a kind of
reasoning that has escaped control. But an investigation that pays only limited
attention to deliberative reasoning in law, considering it irremediably arbitrary
ends up representing the law in a partial fashion. General rules and the
reasoning completely governed by general rules constitute only a subset of the
legal domain. Putting law into practice requires us to embark into deliberative
forms of reasoning. Regarding those argumentative forms as beyond control
because they are not entirely rule-governed makes large sectors of law
impervious to rational treatment. This is a significant blow for a theory
purporting to depict the law as an autonomous domain that only at the price of
distortion can be represented as a by-product of politics.
The problem with the traditional approach can be restated as follows. Whilst
some contemporary positivists acknowledge the existence of deliberative forms
of legal reasoning, 23 they fail to undertake an analysis that takes us beyond the
simple recognition that deliberative reasoning is a component of law. But
simply registering the existence of deliberative reasoning in law is not enough
to arrive at an adequate picture of the legal domain and the certainty associated

21
See L Ferrajoli, Diritto e ragione, supra, n 11, 148.
22
See ibid, 12.
23
Kelsen, Pure Theory of Law, supra, n 12, 348-356 and Raz, The Authority of Law, supra,
n 10, 180-209 are only two of several positivist studies of legal reasoning.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

with that domain. Instead, we need an approach making sense of legal reasoning
as a practice that can be neatly distinguished from arbitrary decision-making. To
that purpose, it is essential to focus on the conditions under which deliberative
argumentation can be rational, even if not entirely bound by pre-existing legal
rules. This entails recognising the need for a two-pronged study, which
investigates the way decisions are made (at an analytical level) and the way they
ought to be made (at a normative level). Accordingly, in order to articulate an
adequate theory of law and legal certainty setting up a theoretical framework
that enables us to evaluate the correctness of decision-making and so to control
adjudicative discretion is as important as analysing the rule-shaped structure of
law. No comprehensive account of legal certainty can be provided unless the
forms of deliberative reasoning in law are not only acknowledged but also
carefully investigated and their implications spelled out in detail. As long as the
relationships of certainty and non-entirely-rule-bound reasoning in law fail to be
discussed in depth, we have an account of certainty that is irremediably partial.
Since the legal world consists not only of rules, but also of argumentative
activities, criteria guiding argumentation and principles structurally different
from rules, the certainty of law is a variable of all those factors. To rephrase, the
structure of legal orders and the language of legal statements are not the sole
main determinants of legal certainty, which instead depends heavily on the
processes of reasoning in law. Similarly, warranting legal certainty is not just a
matter of limiting the legal gaps or the recourse to generic expressions and
vague terms, as traditional theory suggests. It rather requires submitting legal
reasoning to rational control so that the discretion involved in applying and
enforcing pre-existing law can be kept distinct from arbitrary exercises of
power. These remarks bring to the surface the need for a fresh approach to legal
certainty in order to grasp the features escaping the traditional account. It is this
fresh approach that will be discussed in the next section.

C. THE ARGUMENTATION-BASED ACCOUNT

In recent years, legal theorists have set out different approaches to deliberative
reasoning in law. For the specific aims of this study, the various contemporary
approaches to legal reasoning can be divided—however crudely, and passing
over several distinctions of detail—into “moderate” and “ambitious.” The
moderate approach is taken by those scholars who conceive of deliberative
reasoning as a peripheral component of the legal domain. On this view, a theory
of law must necessarily have an account of legal reasoning; but it will be able to
explain the law to a large extent without taking into consideration the main

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 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

achievements of its treatment of legal argumentation. 24 While the moderate

approach acknowledges that most legal operations are argumentative and that
reasoning plays a crucial role in legal practices, the shaping hand of reasoning is
not understood to be so pervasive as to impact on the way we conceptualise the
law. The concept of law can be articulated independently of the main
advancements made in the study of legal argumentation precisely because
deliberative reasoning is regarded not as a ubiquitous legal practice—one that
spreads across the whole of the realm of law—but as a specific component of
law.25
By contrast, the “ambitious” approach parlays deliberative reasoning into an
integral, or comprehensive, theory of law and so emphasises that argumentative
practices not entirely governed by legal rules shape the fundamental legal
notions. Here the account of legal reasoning does not simply figure as a
component among others in legal theory; it is rather an all-embracing and
pervasive exploration, which has consequences investing the study of legal
issues across the board. This perspective enables us to appreciate that the
deliberative reasoning legal subjects engage in when seeking appropriate
solutions to concrete cases is part and parcel of law, not an external component
of it, and therefore is no less constitutive of the nature of law than are general
and abstract rules. Accordingly, with the ambitious approach, the concept of law
should be built on a theory of deliberative reasoning to the effect that law is to
be regarded as an argumentative domain through and through. 26 If we follow
through on this view we will end up constructing the law as an argumentative
24
In this essay, the terms “argumentation” and “reasoning” are employed as synonyms. For a
similar use, see R Dworkin, Law’s Empire (London, Fontana, 1986), at VI, R Alexy, A Theory
of Legal Argumentation (Oxford University Press, English translation of the original German
edn, 1989), 231-232, N MacCormick, “Donoghue v. Stevenson and Legal Reasoning” in P
Burns (ed), Donoghue v. Stevenson and the Modern Law of Negligence (Vancouver, Continuing
Legal Education of British Columbia, 1991), 211, Id, “Argumentation and Interpretation in
Law” (1993) 6 Ratio Juris, 16, and R Alexy, “Interpretazione giuridica” in Enciclopedia delle
scienze sociali, vol. V. (Roma, Istituto dell’enciclopedia italiana, 1996), 66.
25
This approach to legal reasoning is common to the main positivist works on this question
and emerges paradigmatically in J Raz, Practical Reason and Norms (London, Hutchinson,
1975); Id, supra n 10; Id, “The Nature of Law” (1996) 82 Archiv für Rechts- und
Sozialphilosophie, 1-25.
26
This research programme is expressly set out in A Aarnio, R Alexy and A Peczenik, “The
Foundation of Legal Reasoning” (1981) 21 Rechtstheorie, 133-158, 259-273, and 423-448.
The same concept of law informs the work of several scholars who have analysed in depth the
role played by reasoning in shaping the legal system. See C Perelman and L Olbrechts-Tyteca,
The New Rhetoric: A Treatise on Argumentation (Notre Dame, Notre Dame University Press,
English translation of the original French edn, 1969), 22; Dworkin, Law’s Empire, supra, n 24;
Alexy, A Theory of Legal Argumentation, supra, n 24; Id, The Argument from Injustice (Oxford
University Press, English translation of the original German edn, 2002), T Viehweg, Topics
and Law (Frankfurt am Main: Lang, 1993); N MacCormick, Rhetoric and the Rule of Law
(Oxford University Press, 2005). It goes without saying that significant differences of detail
and emphasis emerge in a comparative assessment of these authors.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

social practice aimed at finding reasonable solutions to legal cases. This account
conceives of law as a dynamic articulation of defeasible reasons and so a
practice constitutively open to external influences to the effect that the legal is
not clearly marked off from the extralegal. 27 So, the ambitious approach—let us
call it the “argumentation-based account”—does not look at the law as a definite
system of general and abstract rules governing specific conducts, such that, in
the manner of the traditional view, one will recur to deliberative reasoning only
where legal directives are indeterminate. On the contrary, in this view, legal
subjects engage, of necessity, in deliberative reasoning whenever they need to
decide a legal case, with the consequence that the deliberative reasoning used to
find appropriate solutions to concrete cases is as important as legal rules to
grasp the nature of law. 28 Accordingly, the argumentation-based account
endorses what I here call the “argumentation thesis,” namely, the view that in
addition to impacting on specific stages in the development of a legal system,
deliberative reasoning also affects the law as a whole, and incisively so, to the
effect that it should be understood as a defining element of law.
To summarise the main points made so far and move forward, there is a
theoretical momentum involved in endorsing the argumentation thesis, because
this endorsement will have us embrace an account of the nature of law that is
distinctively different from the traditional one. As a result, a theory endorsing
the argumentation-based account will have to reconsider the main legal issues

27
This concept of law is set out especially in R Dworkin, Law’s Empire, supra, n 24, and Alexy,
The Argument from Injustice, supra n 26. Dworkin proposes to make due allowance for the
conceptual scope of deliberative reasoning through “an interpretive concept” of law under
which “judges should decide what the law is by interpreting the practice of other judges
deciding what the law is” (Ibid, 410). Here, the law is made out to be primarily an
argumentative practice: “Law is not exhausted by any catalogue of rules or principles, each
with its own dominion over some discrete theatre of behaviour. Nor by any roster of officials
and their powers each over part of our lives. Law’s empire is defined by attitude, not territory
or power or process. ... It is an interpretive, self-reflective attitude addressed to politics in the
broadest sense” (Ibid, 413). In a similar vein, Alexy defines law as a “system of norms that (1)
lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by
and large socially efficacious and that are not themselves unjust in the extreme, as well as the
totality of norms that are issued in accordance with this constitution, norms that manifest a
minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the
extreme, and, finally, (3) comprises the principles and other normative arguments on which the
process or procedure of law application is and/or must be based in order to satisfy the claim to
correctness” (Ibid, 127). On this definition, the law is made to consist not only of rules but also
of normative arguments and procedures for the application of law, and these elements—
normative arguments and applicative practices—require us to embark on deliberative
reasoning.
28
Clearly, these introductive remarks can hardly do justice to the argumentation-based
account. Those interested in a more detailed presentation of the distinctive elements of that
account and of the differences setting it apart from the traditional view can refer to S Bertea,
Certezza del diritto e argomentazione giuridica (Soveria Mannelli, Rubbettino, 2002), 73-126.

12
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

anew.29 Among them is legal certainty, which, thus, will undergo some changes
once the argumentation thesis and argumentation-based account are taken on
board. These changes invest the very definition of legal certainty. On an account
shaped by the argumentation thesis certainty enters as a specific component of
the enquiry into the forms and limits of deliberative reasoning. The
argumentation-based account conceives not only law but also certainty as a
variable of deliberative reasoning as well as a property of legal practices. This
marks a substantial change of perspective because the certainty of
argumentative practices is distinctively different from the certainty of normative
statements. Practices present a degree of predetermination that is significantly
more limited than, and different in character from, the predetermination
characterising statements. We can appreciate these limits and differences if we
put aside for a moment the legal case and consider our attitudes towards
procedures in general. Think, for instance, of the procedures involved in job
allocations (from advertisement to offer). We will regard the process leading to
job allocation as certain if we know in advance the necessary steps involved in
it and the criteria that will be used to guide the selection of the successful
candidate. In this context, certainty does not amount to the ability to know
beforehand the contents of the process or its substantive outcomes. Indeed,
knowing from the very beginning contents and results of such a process is
ordinarily taken to be a defect of the process, as opposed to a symptom of its
certainty. The same applies to law when conceived of as an argumentative
practice. The theory of certainty deriving from acceptance of the argumentation
thesis severs legal certainty from the possibility to know ex ante how a legal
dispute will be decided. In the argumentation-based perspective, the law is to be
qualified as certain if it predetermines the processes used to deciding cases, i.e.
pre-establishes the argumentative steps and standards that govern the
deliberative reasoning conducting to specific decisions. The law is certain,
according to this view, insofar as the activities of legal reasoning through which
law is enacted, applied and enforced are established in advance to the effect that
citizens can know from the outset the forms through which the power is
exercised. What remains to be determined even in legal systems informed by the
principle of certainty are the stages involved in passing from general and
abstract legal statements to concrete and specific rulings. The contents of such
rulings, instead, are bound to remain out of reach; we will not be able to know
them in advance even within legal settings shaped by the principle of certainty.
In other words, the object of legal certainty is an argumentative activity and so
29
See S Bertea “Legal Argumentation Theory and the Concept of Law” in F H van Eemeren,
J A Blair, C A Willard and A F Snoeck Henkemans (eds), Anyone Who Has a View. Theoretical
Contributions to the Study of Argumentation (Dordrecht, Kluwer, 2003), 213-226. I intended to
advance in this direction by providing a sketch of how some key concepts of legal theory—
namely, those of legal source, legal validity and legal norm—should be critically revisited in
the light of the basic insights underlying the argumentation-based account.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

procedural law, not the result of that activity, namely, substantive law. Legal
certainty is a distinctively procedural notion, which is mainly related to
impartiality in decision-making rather than to content-determinacy.
This dimension of legal certainty can be further clarified by bringing to bear
Habermas’s view. Whereas Habermas is not primarily concerned with the
concept of law and need not be viewed as an advocate of the argumentation-
based account, in a critical discussion of Dworkin’s legal theory he defends
tenets that cohere with the definition of legal certainty deriving from acceptance
of the argumentation thesis. For, in order to reject the criticism, voiced by the
champions of Critical Legal Studies, that the contradictory composition of
actual legal systems condemns a coherence theory of law, such as Dworkin’s, to
radical indeterminacy, Habermas calls into question the “classical concept of
legal certainty.” In particular, he argues that the degree of predictability
traditionally associated to legal certainty stems from a conception of a legal
system as an order consisting “solely of ‘rules,’ that is, norms with built-in
application procedures.”30 This conception of legal systems is hardly tenable and
should be replaced by the conception of a legal system as an order “constructed
of rules, principles, and policies.” 31 In the alternative framework, the traditional
definition of certainty as predictability is untenable and should be replaced by a
procedural notion. Procedural certainty consists not in “certainty of outcome,”
but rather in warranting procedures apt to reach the “discursive clarification of
the pertinent facts and legal questions.” In Habermas’s view, then, law is certain
if the “affected parties can be confident that in procedures issuing in judicial
decisions only relevant reasons will be decisive, and not arbitrary ones. If we
view existing law as an ideally coherent system of norms, then, this procedure-
dependent certainty of law can satisfy the expectations of a legal community
intent on its integrity and oriented towards principles, such as that each is
guaranteed the rights to which she is entitled.” 32
Whereas the procedural dimension is key to the definition of legal certainty
informed by the argumentation thesis it does not exhaust that definition. The
ends traditionally served by legal certainty—safeguard of legitimate
expectations, protection from possible abuses of power, defence of individual
rights—are paid lip service by procedures that, predetermined as they may be,
deploy in arbitrary forms. This suggests that we should incorporate a reference
to the absence of arbitrariness in the definition of legal certainty. And
arbitrariness is not a merely procedural notion. It should, instead, be understood
as a specific case of irrationality: legal procedures are non-arbitrary insofar as
they present a non-irrational structure. The rationality at stake here is discursive
rationality. Discursive rationality is distinct from both logical rationality and

30
Habermas, Between Facts and Norms, supra, n 3 , 220.
31
Ibid.
32
Ibid (original emphasis).

14
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

rhetorical rationality. Logical rationality requires compliance with the rules of

classical, deductive and bivalent, logic; rhetorical rationality is defined as
effectiveness or persuasiveness, to wit, capacity to produce a consensus. Neither
logical rationality nor rhetorical rationality defines non-arbitrariness in law. The
logical concept of rationality applies to demonstrative argumentation, but legal
reasoning is not exclusively demonstrative. Therefore, a merely logical
definition cannot by itself characterise the whole of legal rationality. Nor will
the rhetorical concept work, since the standards of rhetorical rationality are
relative. Because there could in principle be as many types of rhetorical
rationality as there are people on Earth, there is nothing in the rhetorical
conception that prevents arbitrariness from emerging: a procedure can be
persuasive, or effective in getting consensus, and nonetheless arbitrary. 33
Therefore, they are the standards of discursive rationality that frame rationality
in, and non-arbitrariness of, law. Discursive rationality is a form of
communicative rationality. It refers to discourses, i.e. the practices through
which a given standpoint is defended by offering reasons, and consists in a
number of interactional principles—i.e. criteria that make possible the moves in
a discursive exchange aimed at subjecting a point of view to a critical test—
such as coherence, generalisability, efficiency, testability, acceptability of
consequences, and sincerity. 34 These parameters are neither binding from the
logical point of view nor necessarily effective from the rhetorical point of view.
Even so, qua defining features of the practice of discussion, they should be
considered rational at least to the same extent as discussing is considered a
rational strategy for settling controversies.
The link asserted to hold between certainty and non-arbitrariness, or absence
of discursive irrationality, leads to the conclusion that legal certainty is secured
as long as the activities of deliberative reasoning in law display a structure that
is both predetermined and not in contrast with the principles of discursive
rationality. Legal certainty, thus, incorporates a procedural component—the
forms of legal decision-making need to be prefixed—and a rational component
—deliberative reasoning in law must not depart from the standards setting the
discursive paradigm of rationality. It is the combination of those components—
the procedural component and the rational component—rather than just one of
these that makes the law certain. This means that certainty is not put at risk

33
For a critical discussion of the rhetorical notion of reason as a premise to a full-fledged
theory of discursive reason, see F van Eemeren and R Grootendorst, “Rationale for a Pragma-
Dialectical Perspective” (1988) 2 Argumentation, 274-279.
34
These criteria of discursive rationality are set out in N MacCormick, Legal Reasoning and
Legal Theory (Oxford University Press, 1978), 100-194; A Aarnio, R Alexy and A Peczenik,
“The Foundation of Legal Reasoning” (1981) 21 Rechtstheorie, 266-270; A Aarnio, The
Rational as Reasonable. A Treatise on Legal Justification (Dordrecht, Reidel, 1987), 185-229;
Alexy, A Theory of Legal Argumentation, supra, n 24, 177-208; and A Peczenik, On Law and
Reason (Dordrecht, Reidel 1989), 47-212.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

exclusively when legal reasoning diverges significantly from prefixed structures

but also when the argumentative activities in law are carried out in forms
incompatible with the model of discursive rationality. 35 To summarise, a fully-
fledged argumentation-based account will define legal certainty as the pre-
determinability and non-irrationality of the deliberative reasoning
accompanying creation, application and enforcement of law. Legal certainty is
made possible by the existence of practices of legal reasoning whose structure is
knowable in advance and which do not violate the standards of discursive
rationality.
But, whilst certainty remains essentially a procedure-related notion it has
implications for the contents of law too. The outcomes of deliberative reasoning
that is deployed within a system of laws counting certainty among its properties
are not necessarily fair or appealing from the substantive point of view. The
non-irrationality of argumentative structures cannot alone warrant the material
acceptability of legal results. However, as long as the law is certain the results
of deliberative reasoning are of necessity connected to the other provisions of
the legal order at stake. So, certainty as procedural pre-determinability and
discursive non-irrationality ensures that legal rulings are rationally derivable
and not completely detached from the remaining parts of a legal system.
Extremely unfair as they might turn out to be, the decisions reached within a
law informed by the ideal of certainty will be grounded on the wider system. As
such they are to be understood as rationally defensible in the light of the rules,
principles and policies inhabiting the legal order. In other terms, legal certainty
makes sure that the outcomes of deliberative reasoning in law are rationally
possible, albeit not per force rationally necessary, or stringent. “What is
rationally possible” configures a domain inhabited by what can be justified
without acting inconsistently with the standards of discursive rationality, and so
stands in between “what is rationally necessary” and “what is rationally
impossible.” Therefore, while in relation to the results of deliberative reasoning
in law certainty is to be understood in the negative—as non-indeterminacy,
instead of as complete predetermination—it makes sense to claim that the
notion of certainty shaped by the endorsement of the argumentation thesis keeps
some link with the idea of legal determinacy insofar as it excludes legal
outcomes that are rationally impossible.
The preceding treatment makes it clear that certainty is constitutively
limited. Its structural limits do not preclude certainty from serving a number of
35
Therefore, other things being equal, the more irrational the forms of legal reasoning the less
certain is the system of law wherein those forms take place. Clearly, certainty is a value that
presents different degrees of fulfilment. Hence, not every violation of rational procedures
necessarily results in a denial of the certainty of law. Legal reasoning can occasionally take
place in less than rational forms without destroying the certainty of law, but a departure from
the rational model will have the effect of proportionally weakening the amount of legal
certainty.

16
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

goals, among which figures prominently protection against possible abuses of

those in power. But, certainty cannot be conceived of as a conclusive protection
for citizens. This limit is due less to the theoretical framework set out to study
certainty than to the qualification of certainty as a value. Values present the
same structure as principles and regulative ideas: they operate in the fashion of
optimization commands, rather than in the way of definitive and specific
commands. The distinction between principles and definitive commands has
been spelled out by Robert Alexy, who in his treatment of the notion of legal
norm claims that legal standards can take the form of “optimization
commands,” such as principles, or of “definitive commands,” such as rules. 36 By
optimization command Alexy means a standard “commanding that something
be realized to the highest degree that is actually and legally possible.” 37 By
contrast, a definitive command designates a directive that is either to be
complied with or not, to wit, requiring the addressees to do exactly what it
demands. Insofar as it is taken to be a value, certainty operates like a principle,
not like a rule: it constitutes an optimisation command that is not necessarily to
be fulfilled integrally but is to be relativised in the direction of the context and
possibilities as well as seconded up to a certain degree. 38 Certainty, then, does
not establish a rigid standard that law has to follow in an all-or-nothing fashion,
but a criterion that instances of law are supposed to realise to the maximum
possible degree. In consideration of this principled quality certainty is subject to
the procedure of weighing and balancing. And it is the very possibility of
weighing and balancing certainty that is the ultimate source of the limited
functionality of certainty in providing protection from the abuses of those in
power. Balanceable standards can warrant only incomplete protection. No
matter how a legal approach defines and characterises certainty the protective
function that certainty alone can perform is constitutively limited. Therefore,

36
See R Alexy, “On the Structure of Legal Principles” (2000) 13 Ratio Juris, 294-304, and Id,
A Theory of Constitutional Rights (Oxford University Press, English translation of the original
German edn, 2002), 44-69.
37
Id, “On the Structure of Legal Principles”, 294-295. Id, A Theory of Constitutional Rights,
47-48.
38
A caveat should be introduced here. Strictly speaking principles are deontological statements
prescribing what one ought or ought not to do. Contrariwise, certainty has an evaluative nature,
that is, it incorporates an axiological expression relative to what is good or not good. This
difference does not set principles and values radically apart since “principles and values are
only distinguished by their respectively deontological and axiological characters” (Alexy, A
Theory of Constitutional Rights, supra, n 36, 92). Accordingly, ultimately an appeal to
principles is not structurally different from an appeal to values and the transition from
principles to values, and vice versa, is perfectly acceptable so that we can use principles and
values interchangeably. On this aspect see also N MacCormick, “Coherence in Legal
Justification” in W Krawietz and H Schelsky (eds), Theorien Der Normen (Berlin, Duncker &
Humblot, 1984), 40-41.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

the aspiration to prevent abuses in the exercise of power does not find an
adequate response in the exclusive reliance on legal certainty.
Strictly dependant on the theoretical framework endorsed is, instead, the
picture one draws of the relationships obtaining between certainty and another
fundamental legal value, justice. 39 Significantly, in that respect the theory of
certainty shaped by the argumentation-based account fares better that the
traditional view. In the traditional view, the relation between legal certainty and
justice is depicted exclusively in terms of tension, or conflict. On the one hand,
certainty is associated with uniform treatment, regularity, and predictability—
law is certain to the extent that it provides uniformity and regularity—on the
other, justice is sensitive to particularity and is compatible with the introduction
of exceptions to the general and uniform rule. While certainty resembles
regularity and uniformity, justice strives for adaptability and flexibility. The two
are potentially conflicting and incompatible ideals that cannot be implemented
fully at the same time. And since both are considered basic values in the legal
order, any legal system should strike a balance between the need for certainty,
namely, safety and rigidity, on the one hand, and the need for justice, i.e.
flexible and reasonable regulations, on the other hand. Hence, in the traditional
view, how far the principles of certainty and justice can be accomplished is a
question of degree: they can be fulfilled only in a certain measure, and in
opposite directions at that, because to strive for a legal order modelled after the
ideal of flexibility and justice is to move away from one informed by uniformity
and certainty, and vice versa.
The picture of the two fundamental values underpinning the legal enterprise
that emerges from endorsing the argumentation-based account of law is
different. In a framework shaped by the argumentation thesis, justice is a
variable (also) of the rationality of deliberative reasoning—the chances to arrive
at just legal outcomes are affected insofar as no recourse is made to correct
argumentative practices in law—to which certainty is also linked—for, certainty
depends on deploying non-irrational and so non-arbitrary, or incorrect, forms of
argumentation. Hence, within the framework of this view, a partial overlap
between certainty and justice is secured in that they both depend on the
standards of rational argumentation. For an illustration of the partial
convergence between certainty and justice, consider the case of deliberative
reasoning in law being forced to follow incorrect forms and so not being
conducive to justice: the certainty of law would be affected as well. Thus,
39
By “fundamental legal value” I mean a value that is not merely one of several adopted to
assess legal rules and systems but a value conceptually attached to law. I regard certainty and
justice as fundamental since a legal system instantiates both the need for enforceable rules
established through impersonal procedures aimed at settling controversies and the need to have
citizens find these rules, procedures, and solutions just. Whence the key position certainty and
justice will occupy within any legal system. For a similar view see Habermas, Between Facts
and Norms, supra, n 3, 194-197, though he is not a lone voice in this.

18
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

everything else being equal, certainty increases with every increase of justice in
arguing. In sum, because the discursive (non-ir)rationality of decision-making is
a defining condition of legal certainty, and since the practice of deliberative
reasoning is not just unless it accords with the criteria of discursive rationality,
there is at least one significant way in which certainty and justice can be seen to
tie in by convergence, not conflict. 40 In contrast to the traditional stance, which
sees certainty and justice as incompatible principles engaged in a balancing act,
each having to give way where the other moves in, the argumentation-based
account unpacks the idea of a conceptual connection between certainty and
justice. While certainty and justice may conflict rather than converge when they
are constructed as features of a legal system, taking the argumentation-based
perspective shows the traditional view to be incomplete, narrow in focus, and
unable to fully account for the relation at hand.

D. CONCLUSIVE REMARKS: ARGUMENTATION-BASED ACCOUNT AND

LEGISPRUDENCE

In this essay I have compared two theories of legal certainty. First, I have
introduced the basic tenets of an already consolidated and widely explored
approach to the certainty of law—the approach defended by the positivist school
of legal thought. In that part, my aim has been mainly reconstructive: I have
concisely presented the view of legal certainty emerging from the works of
some champions of the traditional account and argued that it is perspicuous and
insightful to a given extent, yet can ultimately be shown to be partial and one-
sided. I have, then, passed to introduce the theory of certainty that will be
constructed once the argumentation thesis is coherently embraced. In this part I
could not count on a settled framework of thought, because thus far the
implications of the argumentation thesis for the study of legal certainty have
remained largely unexplored. My argument has, accordingly, been tentative and
my conclusions—which can be summarised in the definition of legal certainty
as a combination of procedural determinacy and lack of irrationality, the
specification of the intrinsic limits of legal certainty, and the picture of the
relation between legal certainty and justice in non-necessarily conflictive terms
—take a likewise work-in-progress character. Provisional as it might be, the
40
This conceptual overlap between certainty and justice is merely partial and does not mean
that the two coincide: certainty is the predetermination and non-irrationality of reasoning in
law and justice is the upshot, among other things, of rational argumentation. In the picture
sketched here, then, the two concepts connect but do not collapse into each other since
conceptual connection differs from correspondence. The thesis that certainty and justice are
ultimately coincident and indistinguishable is, instead, argued for in A Aarnio, The Rational as
Reasonable. A Treatise on Legal Justification (Dordrecht, Reidel, 1987), 1-8, and A Peczenik,
On Law and Reason (Dordrecht, Reidel 1989), 31-35.
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

argument deployed in the foregoing suffices to show that the focus on legal
reasoning enables us to grasp features of legal certainty that traditional legal
theory overlooks or appreciates only in part. This being so, the argumentation-
based account can be said to allow on the whole a deep insight into the certainty
of law. Which provides further reasons to think that the argumentation-based
account is an insightful comprehensive alternative to traditional legal theory.
Accordingly, it is appropriate to conclude this study with some clarifications
relative to the relationship holding between the argumentation-based account
and another likewise ambitious contemporary alternative to traditional legal
theory, legisprudence. The connection between argumentation-based account
and legisprudence is far from evident at a superficial level. Legisprudence can
be “defined as a rational theory of legislation” consisting of an “elaboration of
the idea of freedom as principium,” which purports to arrive at a systematic
theoretical study of legislation. 41 By doing so legisprudence aims to distinguish
legislation from politics, which is taken to be a power-game not subjected to the
same standards of rationality as the legal domain, and so to render legislation
amenable to theoretical treatment. In the conception defended by the advocates
of legisprudence, statutory law-making can be given a rational account: not only
will it be analysed by means of the tools of legal theory but it will also be
regarded as a central issue of legal theory. This research programme configures
legisprudence as a general attempt to enlarge the horizons of legal theory, which
thus far has focused mainly on the judicial activity, neglecting by that same
token the role of the legislator. These scant remarks, which fall short of doing
justice to the innovative character of legisprudence, 42 suffice to show that the
argumentation-based account of law can hardly be inscribed in the movement of
thought leading to legisprudence. And, indeed, especially if we focus on the
actual results arrived at thus far by the advocates of the argumentation-based
account the temptation may arise to look at that account as a paradigmatic
restatement of the centrality of the judiciary in the legal domain. But, intuitively
persuading and grounded in textual materials as this interpretation might be, it
comes at the price of overlooking a less apparent yet deeper connection linking
the theoretical horizons of argumentation-based account and legisprudence.
This connection can be best appreciated if one pays attention less to the
actual results of the research programme carried out by the argumentation-based
account than to the rationale informing it. That research programme is aimed at
extending the scope of practical reason and using it to provide a rational
treatment of evaluative discourses, which are traditionally considered to
constitute an irrational ambit or, at least, a domain not subjected to the same

41
L Wintgens, “Legisprudence as a New Theory of Legislation” (2006) 19 Ratio Juris, 10.
42
For a detailed presentation of legisprudence see Id, Legisprudence: a New Theoretical
Approach to Legislation (Oxford, Hart, 2002), and Id, “Legislation in Context: Essays in
Legisprudence (Aldershot, Asghate, 2007).

20
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

standards of rationality as theoretical discourse. On the view dominating

jurisprudence when the pioneers of the argumentation-based account originally
set out their research programme deliberative reasoning was regarded as an
activity proceeding independently of theoretical considerations and following
schemes not reducible to rational structures. The core aim of the argumentation-
based account can, thus, be summarised in that of widening the area of rational
discourse by allowing theoretical considerations to penetrate provinces
traditionally understood as impervious to reason and theoretical treatment. The
fact that the argumentation-based account has mainly pursued this end by
focusing on the kinds of deliberative reasoning performed by judges, as opposed
to other legal actors such as legislators, should not obscure the affinity of the
ends pursued by the argumentation-based account with the objectives sought by
legisprudence. Both argumentation-based account and legisprudence purport to
extend the rational domain to spheres that are otherwise regarded as intractable
by reason and to expand the territory of what is rational at the expense of the
realm of politics and persuasion. In addition, the thesis—central to the
argumentation-based account—that deliberative reasoning follows specific
criteria of rationality and so is irreducible to arbitrary practices is of extreme
importance for legisprudence: after all, legislation is an activity of deliberation
that is not entirely bound by previous rules; and insofar as legislative law-
making can be regarded as a special sort of deliberative reasoning—distinct by
degree, and not in kind, from the judicial creation of law—the advancement
made by the argumentation-based account can be applied to the study of
legislation and form the starting point of a fully developed project of
legisprudence. Nor should the fact that the champions of the argumentation-
based account did not explicitly contemplate this when they originally devised
their own agenda be seen as an obstacle. As sometimes is the case with
frameworks of thought, the potential of the argumentation-based account has
turned out to be greater than its first advocates contemplated. The theoretical
approach, tools, and structures worked out by the supporters of the
argumentation-based account to delimit the sheer discretion judges make use of
when they apply and concretise legal rules, principles and policies can assist the
advocates of legisprudence in their effort to show that statutory law-making is a
rationally structured activity.
In sum, legisprudence should look at the argumentation-based account as an
ally, not an antagonist, in its battle to extend the boundaries of traditional legal
theory. Whilst, apparently, nothing I have argued in this section should be taken
as an attempt to downplay the originality of legisprudence, it seems to me that
the affinities between legisprudence and argumentation-based account are more
significant than their differences. Therefore, a closer dialogue between these
two contemporary traditions of legal thought is recommendable and, ultimately,
 S.Bertea, “Towards a New Paradigm of Legal Certainty”, Legisprudence 2, 2008, 25-45

bound to benefit both the study of legislation and a better comprehension of

judicial reasoning.

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