Aspects of uncertainty in private and public law

Abstract

PREFACE

“Nothing contributes to the certainty of laws (whereof I am now treating), as to keep the authentic writings within moderate bounds, and to get rid of the enormous multitude of authors and doctors of laws. For by them the meaning of laws is distracted, the judge is perplexed, and the advocate himself, as he cannot peruse and master so many books, takes refuge in abridgements.” Francis Bacon (Spedding, (Ed.) The Works of Francis Bacon, Vol.5, p.104.)

This thesis, though written in contravention of Bacon's strictures, nonetheless dares to discuss the problem of uncertainty in laws, together with uncertainty in various types of legal instruments. The work was not intended as jurisprudential, although the topic is one which tends itself to such analysis, but rather as a study, through the cases, of a dilemma in which the courts frequently find themselves - the dilemma of whether to hold an unclear provision void for uncertainty, or alternatively to accord it what meaning they can, even though it be no more than a guess at the author's intention. My main interest was with the so-called "test" of certainty in public law instruments, where the origin, status and extent of application of the test are all obscure, but the study was extended to include the more common private law instruments in order to provide a basis for comparison.