In everyday language, “legal security” refers to the supposed stability and predictability of legal solutions. Law is there to steer or, more modestly, to accompany the action of institutions and individuals functioning or living in society. Among its objectives is the definition of a general framework that is strong enough to allow actors to know in advance what they are allowed or not allowed to do.
In law, and in particular in French law, which is strongly influenced by European integration (COE – UE), legal security can have two major benefits:– It can have the value of a “legal principle”, in which case we talk of the “principle of legal security”; here, legal security plays an extremely prominent prescriptive role: as we shall see, it serves to maintain existing legal systems and encourages the development of new ones;– It is also a description tool (naturally, one that is not without a prescriptive dimension even if, in this case, its role is less prominent), in the sense that it sets out to examine the content of the rule of law with regard to the security that it is likely, or unlikely, to offer to those to whom it applies.
These two meanings of legal security, which are mutually complementary, deserve closer attention if they are likely to apply to the working hypothesis chosen by this research programme: real estate transactions.
Legal security: a prescription tool
Prescribing to establish the basis for the development of new legal systems: the European example
Here, the example of the European Union can be taken, showing how the “framework principle” of legal security – which covers a very large number of sub-principles (acquired rights, predictability of solutions, non-retroactivity, public nature of acts, legitimate confidence, etc.) – has been used from a very early stage by the Court of Justice (ECJ, April 6, 1962, Bosch, no. 13/61) to oversee the EU's standard-setting activity.
In a comparable manner, see also the jurisprudence of the ECHR (ECHR, June 13, 1979, Marckx v. Belgium).
Here, legal security plays a cardinal role. It supports the emergence of a European legal model (EU or COE) which, very early on, sought to establish itself based on a principle of legality or “community of law”.