Uncertainty and law - do they go together? Christina Hattinger, Managing Director of the Association of Private Hospitals, summarizes some legal theories and strategies for dealing with uncertainty.
Can there be uncertainty in the law? Traditionally, the main task of law is to ensure order and security. But because uncertainty and insecurity cannot always be prevented or overcome, there must be strategies for dealing with uncertainty. Scholars have been working on the idea that chaos is not only a threat to society, but even has an important function in democracy, so that it is also the task of the law to maintain and even create specific forms of uncertainty. Tendencies towards excessive order must be confronted with the counter-forces of re-chaoticization.
Theorists distinguish between security and certainty. Maximum certainty is not desirable, as this always means restricting freedom. Thus, an enormous increase in scientific knowledge not only leads to gaps in knowledge being closed, but can even lead to more ignorance as new questions arise.
Strategies are therefore required that enable decisions to be made despite uncertainty. These can be techniques that do not eliminate the uncertainty, but rather the effects that paralyze decision-making. For example, by ensuring that decisions are no longer questioned by superiors, regardless of whether sufficiently plausible reasons have been given for them. Or by breaking down the decision-making process into smaller sections that may no longer be questioned in subsequent sections.
There are also other approaches: By splitting what appears to be a single uncertainty into numerous smaller uncertainties, the total uncertainty may even be increased in the first step. In each individual stage of the procedure or each individual partial decision, however, the inhibiting aspect of the uncertainty moment becomes less noticeable.
Theorists believe that it becomes even clearer where different forms of uncertainties are constructed. Insurance companies, for example, do not merely reduce the material risk of a specific loss event caused by the insured by burdening themselves with a financial risk for the occurrence of the liability event. Rather, they also create an additional financial risk on the part of the insured parties, who have to bear frustrated expenses in the form of insurance premiums in the event of a non-occurrence of liability. The corresponding basic structure can then be further complicated, for example by introducing statutory liability caps or reinsurance by the insurers themselves. The decisive pattern remains the same: once again, uncertainties are not eliminated, but multiplied, but at the same time spread across different carriers and made easier to bear for each individual party by this distribution.
We often hear that uncertainty is hard to bear. Strategies certainly help to deal with uncertainty or insecurity. But the statement that human beings are designed to be able to get through all crises is at least comforting.
If you would like to read more about these and other theories, you can find more information here https://www.praefaktisch.de/nichtwissen/chaos-in-ordnung-bringen-zum-umgang-mit-unsicherheit-und-ungewissheit-im-recht/
