Sustainability of the Law, a LOST Cause?

 Author: Rob van den Hoven van Genderen

On the Faculty's LOST Research group, see: https://ulapland.fi/en/faculty-of-law/research-in-law/research-group-lost/

Rob van den Hoven
van Genderen

The call for sustainability does not just concern the environment. It concerns the whole of human society and development. A less accentuated part, although very important aspect in the strive for sustainability, concerns the basis of society, the law.

How sustainable is the law when one sees that the rule of law is crumbling, the Geneva Conventions and treaties on human rights are trampled upon in illegal wars? How sustainable are treaties and conventions on climate control and environmental sustainability if major states resist following the rules?  On a national and international level there seems to be a receding respect for the rule of law, trust in the objectivity of legislature, judiciary and doubts about executing institutes as well as the objectivity of media and science.

These developments create uncertainty within civil societies and distrust in the credibility of international relations, resulting in a volatile world economy and political instability. Legal and political uncertainty is also the result as well as the cause of polarization on national and international level. Instead of cooperation there is an increasing inclination toward conflict. The application of laws and treaties, as well as the application of justice is disturbed by interpretation based on this polarized difference in perception and maintenance of the law and the legal system.

Because of differences in political stances and opinions, laws and treaties seem increasingly sensitive to multi-interpretability. This opens the way to an increasing difference in perception of the meaning of those rules, creating disturbance, open discretionary powers, conflicts and even misuse of the law, bypassing the original purpose of the law.  For a stable society, it is of the utmost importance to have a transparent, credible, trustworthy set of rules to create legal certainty. Further, laws must represent the current values that are respected and followed by all.

This leads to another aspect of the quality and credibility of the law.

Laws can create uncertainty because rules are not well defined. For example, the European AI Act involves uncertain definitions and risk-based classification of applications (and even uncertainty of permitted systems) that can be adapted on short notice by the law-making institutions. Such laws create an invitation for conflict and polarization between parties with different goals.

From a perspective of legal certainty, there are two levels of requirements that determine the gradient of the sustainability and resilience of the law.

Firstly, there is the access, understandability and transparency of the law itself: clear wordings in language and unilateral interpretability of the definitions and explanation of the purpose of the law to the legal subjects, the people, as well as the states and institutions and other legal persons. It must also be clear what the effects of the law are, and its contents, motivation and applicability must be consistent to make it trustworthy and predictable in the effects on the subjects and society.

Secondly, the application of laws and legal rules, its interpretation and maintenance, must be trustworthy. One must be confident that authorities as well as the other actors of the judicial system, legislature, executive and justice abide by the laws as they are meant to be. 

Laws and the legal system are only credible and trustworthy when they are created based on the rule of law, followed on all levels, by states, judicial and executive institutions and the people without abstention.

This creates legal sustainability of the law as it should be. The problem is that the state of the world is moving away from legal sustainability on national and international level.