Sur les traces d'un principe de securite juridique en droit canadien. Les pistes du droit europeen

摘要

In European juridical discourse, legal certainty was initially conceptualized as a legal value and objective and, for the most part, was a topic for research in the theory and philosophy of law. European legal discourse gradually recognized the formal status of legal certainty, which subsequently became a principle or legal norm. The ECHR and the CJEC, in particular, recognized and now apply a general principle of legal certainty in their case law. Considering this, legal scholarship states that the principle of legal certainty in domestic and supranational European law has emerged and been officially enshrined. But some authors go further by arguing that legal certainty is a universal norm inherent to the rule of law, binding on judges and legislators. Within the European legal community, the multifaceted concept of legal certainty has now become a versatile, malleable standard that dictates the specific requirements of each judicial system and whose autonomy and effectiveness are problematic. In Canada, the concept of legal certainty was recently introduced in jurisdictional and doctrinal discourse, without, however, receiving express status as a legal norm. The European example illustrates the concept's legal potential, in other words, its impact on judicial thought and on the implementation of laws. The Canadian discursive approach to the concept makes it likely, yet hypothetical, that legislators will eventually grant legal certainty, which is currently a legal value and objective, the status of a principle.