Legality
Encyclopedia
The principle of legality is the legal ideal that requires all law
to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law. It is closely related to legal formalism
and the rule of law
and can be traced from the writings of Feuerbach
, Dicey
and Montesquieu.
The principle has particular relevance in criminal and administrative law. In criminal law it can be seen in the general prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal at the time of their commission or omission. The principle is also thought to be violated when the sanctions for a particular crime are increased with retrospective effect.
In administrative law it can be seen in the desire for state officials to be bound by and apply the law rather than acting upon whim. As such advocates of the principle are normally against discretionary powers.
The principle can be varyingly expressed in Latin phrases such as Nullum crimen, nulla poena sine praevia lege poenali
(No crime can be committed, nor punishment imposed without a pre-existing penal law), nulla poena sine lege
(no penalty without law) and nullum crimen sine lege (no crime without law).
, the International Covenant on Civil and Political Rights
and the European Convention on Human Rights
. However the imposition of penalties for offences illegal under international law
or criminal according to "the general principles of law recognised by civilised nations" are normally excluded from its ambit. As such the trial and punishment for genocide
, war crimes and crimes against humanity does not breach international law.
There is some debate about whether this is really a true exception or not. Some people would argue that it is a derogation or - perhaps somewhat more harshly - an infringement of the principle of legality. While others would argue that crimes such as genocide are contrary to natural law
and as such are always illegal and always have been. Thus imposing punishment for them is always legitimate. The exception and the natural law justification for it can be seen as an attempt to justify the Nuremberg trials
and the trial of Adolf Eichmann
, both of which were criticised for applying retrospective criminal sanctions.
, the legislature can (in theory) pass such retrospective laws as it sees fit, though article 7 of the international convention on human rights, which has legal force in Britain, forbids conviction for a crime which was not illegal at the time it was committed. Article 7 has already had an effect in a number of cases in the British courts.
In contrast many written constitutions prohibit the creation of retrospective (normally criminal) laws. However the possibility of statutes being struck down creates its own problems. It is clearly more difficult to ascertain what is a valid statute when any number of statutes may have constitutional question marks hanging over them. When a statute is declared unconstitutional, the actions of public authorities and private individuals which were legal under the invalidated statute, are retrospectively tainted with illegality. Such a result could not occur under parliamentary sovereignty (or at least not before Factortame) as a statute was law and its validity could not be questioned in any court.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law. It is closely related to legal formalism
Legal formalism
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
and the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and can be traced from the writings of Feuerbach
Paul Johann Anselm Ritter von Feuerbach
Paul Johann Anselm Ritter von Feuerbach was a German legal scholar. His major work was a reform of the Bavarian penal code which became a model for several other countries.-Biography:...
, Dicey
A. V. Dicey
- References :...
and Montesquieu.
The principle has particular relevance in criminal and administrative law. In criminal law it can be seen in the general prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal at the time of their commission or omission. The principle is also thought to be violated when the sanctions for a particular crime are increased with retrospective effect.
In administrative law it can be seen in the desire for state officials to be bound by and apply the law rather than acting upon whim. As such advocates of the principle are normally against discretionary powers.
The principle can be varyingly expressed in Latin phrases such as Nullum crimen, nulla poena sine praevia lege poenali
Nullum crimen, nulla poena sine praevia lege poenali
Nullum crimen, nulla poena sine praevia lege poenali is a basic maxim in continental European legal thinking...
(No crime can be committed, nor punishment imposed without a pre-existing penal law), nulla poena sine lege
Nulla poena sine lege
Nulla poena sine lege is a legal principle, requiring that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of constitutional states, including virtually all modern democracies...
(no penalty without law) and nullum crimen sine lege (no crime without law).
International Law
Legality, in its criminal aspect, is a principle of international human rights law, and is incorporated into the Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. However the imposition of penalties for offences illegal under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
or criminal according to "the general principles of law recognised by civilised nations" are normally excluded from its ambit. As such the trial and punishment for genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
, war crimes and crimes against humanity does not breach international law.
There is some debate about whether this is really a true exception or not. Some people would argue that it is a derogation or - perhaps somewhat more harshly - an infringement of the principle of legality. While others would argue that crimes such as genocide are contrary to natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and as such are always illegal and always have been. Thus imposing punishment for them is always legitimate. The exception and the natural law justification for it can be seen as an attempt to justify the Nuremberg trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
and the trial of Adolf Eichmann
Adolf Eichmann
Adolf Otto Eichmann was a German Nazi and SS-Obersturmbannführer and one of the major organizers of the Holocaust...
, both of which were criticised for applying retrospective criminal sanctions.
Constitutional Law
The principle of legality can be affected in differing ways by different constitutional models. In Britain under the doctrine of Parliamentary sovereigntyParliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
, the legislature can (in theory) pass such retrospective laws as it sees fit, though article 7 of the international convention on human rights, which has legal force in Britain, forbids conviction for a crime which was not illegal at the time it was committed. Article 7 has already had an effect in a number of cases in the British courts.
In contrast many written constitutions prohibit the creation of retrospective (normally criminal) laws. However the possibility of statutes being struck down creates its own problems. It is clearly more difficult to ascertain what is a valid statute when any number of statutes may have constitutional question marks hanging over them. When a statute is declared unconstitutional, the actions of public authorities and private individuals which were legal under the invalidated statute, are retrospectively tainted with illegality. Such a result could not occur under parliamentary sovereignty (or at least not before Factortame) as a statute was law and its validity could not be questioned in any court.
See also
- Nullum crimen, nulla poena sine praevia lege poenaliNullum crimen, nulla poena sine praevia lege poenaliNullum crimen, nulla poena sine praevia lege poenali is a basic maxim in continental European legal thinking...
- Socialist Legality
- Agent of RecordAgent of RecordAn agent of record is an individual or a legal entity with a duly properly executed in line with the prevailing legal norms and regulations contractual agreement with an insurance policy owner...
External links
- Legality, generally:
- Legality in actual operation in International Law, examples:
- International Court of Justice
- International Criminal Court
- International Criminal Tribunal for the Former Yugoslavia
- International Criminal Tribunal for Rwanda
- International Tribunal for the Law of the Sea
- European Court of Human Rights
- Decisions of various international judicial and quasi-judicial bodies, including PCIJ, CACJ, CAT, CEDAW etc.
- Legality in actual operation in national Constitutional Law, examples:
- US Supreme Court
- Conseil Constitutionnel, France
- Law Lords, UK
- Supreme Court, UK (New!)Supreme Court of the United KingdomThe Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...