Application of law and legal certainty

The application of law can be narrowly defined as the prescription of rules of conduct and punishment for violating them. However, in a broader sense, the application of rights is the respect of each individual, as well as the ability to enjoy in the community as many rights as are necessary to function in society as an equal, productive individual, without hindering other individuals in the same sense, all under the threat of sanctions. From this, bearing in mind the fact that man is not unlimitedly free, we can easily conclude that the application of law, above all, preserves the public interest, in a community that, through its evolution, got the name of a state.

In legal theory, there is an understanding of the state as a community and the state as an organization. As an organization, the state has a monopoly of physical force in order to preserve stability and independence. While the state as a community ensures the enjoyment of all rights within its territory, but with respect and fulfillment of obligations, which are all prescribed by laws.

Legal security in the subjective sense implies the right of every physical and legal person to enjoy maximum freedom without jeopardizing the freedom of others. With that, it is clear that legal security is limited, since no one can enjoy certain rights without limiting or harming the rights and freedoms of others to any extent, except when it is prescribed by law.

In an objective sense, legal certainty is the obligation of the institutions (the same ones to which society has transferred part of its absolute rights and thereby renounced them) to provide basic rights and freedoms to every physical and legal person, while not neglecting to prescribe the obligations that the same persons must fulfill. adhere to and respect them as the equivalent of returning a “service” to both the state and society.

Therefore, legal security is certainly a guarantee that citizens receive through legal acts and norms that their rights will be protected, but with the obligation to respect and act according to the rules that protect the public interest.

 -Human rights and legal security-

After World War II, Europe, aware of the consequences of the absence of the rule of law, various brutal discriminations, as well as the priority obligation to prevent similar accidents from happening in the future, the Council of Europe in 1950 came to a decision to create a "new" branch of law that would to deal with the protection of basic human rights, and in addition to international organizations that will monitor the implementation of rights established through binding acts, as well as remedying violations of basic human rights. Thus, in short, human rights were transformed into something that the Romans called a codification under the name "Convention on Human Rights and Freedoms" (Convention Europeenne des droits de l'homme).

This, in my opinion, is the most significant step forward in the field of law and the application of law, since it protects the community as a whole from the possibility of falling under the discriminatory impulses and dictatorial will of an individual. And in the end, it also lays the foundation stone for strengthening what we know today as the "rule of law", which can be defined as respect for generally accepted moral principles, with the sanctioning of any behavior that violates the basic human rights of a person or community, whereby care must be taken to preserve public order and peace.

-The connection between the application of law and legal certainty-

One can start from the assumption that the application of law is a "prior issue" on which the quality of legal certainty depends.

Namely, the application of rights produces effects in society on the basis of which an individual feels or does not feel that his rights guaranteed by the Constitution, law and international acts are protected. As we said earlier, aspects of other social sciences that have a connection with legal science, on the basis of that connection, exert an influence, indirectly on the procedure of applying the law, and then on the scope of legal certainty.

It would not be wrong to comment on legal certainty as the degree of independence of the country in the international community, in the sense that by evaluating this category, the country strengthens its position as a stable factor and a factor of nurturing civilizational trends, which all results in a greater degree of influence in the international community, and the possibility of securing and preserving interest in the same. Therefore, the connection between the application of law and legal certainty has its own direct and indirect element.

The direct element is reflected in the "previous question", that is, in the degree and quality of the application of law, on which legal certainty depends. The indirect element of the connection is reflected in the influence that, through the application of rights, other areas of social organization have on legal security and on the functioning system, as well as the individual's feeling that his or her rights are protected on a sufficiently wide scale.