parties to such a dispute can predict what the judge’s decision will be, and that saves
the parties, and society at large, time and money.
The fact that it is often easy to establish the contents of positive law can be obscured by the
phenomenon that legal scholars tend to focus on “hard cases”, in which the “correct” legal
solution is disputed.Disagreement If the issue at stake is not what the positive law is but what is
“really” right, it may be much harder to reach an agreement. Although people
frequently agree about what is right or wrong in the sense of critical morality, they
also often disagree. This is less attractive as a basis for a smooth functioning society
than the certainty of positive law. Often it is better to have no conflicts or fast
solutions for conflicts than to have a laboriously reached “right” solution. There-
fore, the law often prefers the certainty of a clear result over the uncertainty of the
“best” solution for a problem.
Positive law also offers legal certainty in a different manner, namely by
providing collective support for theenforcementof legal duties.
A third aspect of legal certainty is that similar cases are treated in a similar
fashion or—in other words—that the law will be applied consistently.
For instance, if one citizen is granted a building permit, legal certainty requires that another
citizen who is in exactly the same position (and applied for one) should also be granted a
building permit.
So legal certainty has at least three aspects:- certainty about the content of the law,
- certainty that the law will be enforced,
- certainty that the law will be applied consistently.
1.2 Roman Law
Our present day law did not fall out of the blue sky. It is the outcome of a historical
development in which what are called “sources of law” play an important role. As
the easiest way to obtain an understanding of legal sources is through history, we
will sketch the development of the law in Europe. In this connection, Roman law
and common law play a central role.
Historical descriptions of the development of law in Europe often start with the
impressive legal system built by the Romans in the period ranging from the eighth
centuryBC(Before Christ) until the sixth centuryAD(Anno Dominior After Christ).
Impressive as the Roman system may have become in the course of these centuries,
it started out in a simple form, that of tribal customary law.
1 Foundations 5