The strategic use of legal uncertainty as a tool of control

By: Jorge Leyva

Legal systems are formally designed to reduce uncertainty by providing predictable rules, defined procedures and mechanisms of review. When uncertainty persists, it is typically understood as a temporary by-product of complexity or transition. In certain contexts, however, uncertainty is not incidental. It is produced, managed and sustained as a method of control.

This phenomenon does not depend on overt illegality. It operates through indeterminate norms, delayed decisions and procedural opacity that leave the individual in a prolonged state of legal exposure. Licences remain unresolved, investigations remain formally open, administrative statuses remain provisional. Each element may appear legally defensible in isolation. Their combined effect is to prevent stabilisation of the legal position and to impose continuous vulnerability.

From a legal perspective, the decisive issue is not the existence of discretion, but its temporal and structural deployment. Discretion exercised without clear timelines or substantive criteria converts legal processes into instruments of pressure. When the law allows authorities to neither decide nor close a matter, uncertainty itself becomes the operative sanction.

This dynamic is particularly visible in politically sensitive cases, migration procedures and regulatory enforcement. The absence of a final decision does not preserve neutrality. It produces foreseeable effects on mobility, employment, reputation and personal security. Individuals adapt their conduct to avoid triggering escalation, even where no formal prohibition exists. Control is exercised through anticipation rather than through command.

Judicial review often struggles to address this form of power. Courts are structured to assess acts, not omissions extended over time. When harm arises from non-decision, delay or procedural suspension, traditional remedies lose effectiveness. The legal system then tolerates a zone of influence in which power operates without clear attribution or proportionality assessment.

The legal relevance of uncertainty lies in its effects. Where sustained indeterminacy predictably restricts fundamental rights or coerces behaviour, it must be treated as a legally cognisable form of interference. Characterising such situations as mere administrative backlog or procedural complexity misrepresents their functional role.

The legal consequence is structural. Legal systems that permit the strategic use of uncertainty without effective temporal limits or review mechanisms do not simply fail to provide protection. They enable control without decision and power without responsibility. Restoring legality in these contexts requires recognising that, in law, prolonged uncertainty can operate as a sanction, and must therefore be subject to the same standards of justification, proportionality and control as any other restrictive measure.