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Davydova M.L. The Certainty of Law and Technical Legal Means of Its Ensuring

DOI: https://doi.org/10.15688/lc.jvolsu.2017.4.3

Marina L. Davydova, Doctor of Juridical Sciences, Professor, Head of the Department of Constitutional and Municipal Law, Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.


Introduction: the uncertainty is not always the lack of the legal regulation. There are situations when, on the contrary, the excessive certainty is harmful. However, to achieve the uncertainty of law is much easier than to ensure its certainty. Therefore, the discussion of technical legal means in the scientific literature is conducted primarily in the context of raising or ensuring the certainty of law. The author classifies these technical legal means. Using the formal and legal method, the author analyzes the legal instruments that reduce the level of law uncertainty. As a result, it is proposed to divide these instruments depending on what is understood by law uncertainty (the uncertainty of a regulated situation or the regulation itself: the normative or individual one). Most technical legal means (estimative concepts, principles, and the combinations of dispositive and peremptory norms, of absolutely and relatively certain elements, conflict norms, the possibility of applying analogy of law, exceptions) are used to maintain the optimal balance of certainty and uncertainty. Some means (legal definitions and legal structures) are naturally designed to eliminate uncertainty. To perform this function the legal definitions and structures must be inextricably linked with each other.

Key words: certainty of law, uncertainty of law, legal means, legal presumptions, legal fictions, estimative concepts, legal definitions, legal structures.

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