Legality Principle

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The principle of legality is captured in the Latin phrase "nullum crimen sine lege, nulla poena sine lege," which, roughly translated, means "no crime nor punishment without law." In essence, the principle of legality means that criminal liability and punishment should be based only upon a prior enactment of a prohibition that is expressed with adequate precision and clarity.

The doctrines that make up the legality principle include the abolition of existing common law penal doctrines, the prohibition of the judicial creation of new penal rules, special rules mandating that penal statutes be construed strictly, the prohibition of ex post facto penal laws, the due process bar on the retroactive application of judicial interpretations altering criminal rules, and the due process invalidation of vague criminal statutes.[1]

  • Negative qualities of common law crimes include lack of notice, the lower likelihood of compliance relative to statutes, the fact that legislatures should define crimes because criminal law choices are fundamentally political, the idea that judicial discretion creates potential for abuse, and the idea that common law crimes are likely to be applied unevenly since they are relatively imprecise and will be interpreted differently.
  • It logically follows that the power of courts to create new offenses ought to be similarly restricted (legislature are doing enough now in terms of making criminal laws. And even when they're not, there's no notice for the defendant if the judge just creates a new law). Moreover, legislatures are elected; they represent the people, unlike judges, and they're accountable to the people. And different judges may have different views as to what rules should be created and how they should be formulated. Also, judge made rules are less clear and less fixed, so there's a danger they'll be applied unevenly by other decision-makers in criminal justice system.
  • Criminal laws should be construed strictly, or, under the Model Penal Code, under the fair import rule (provisions should be construed according to the fair import of terms, but when language is susceptible of differing constructions it should be interpreted to further the general purposes of the Model Penal Code and of the provision involved).
  • There should be no ex post facto laws.
  • The U.S. Supreme Court has consistently observed that limitations on ex post facto judicial decision-making are inherent in the notion of due process.
  • Laws must be meaningfully precise, or at least not meaninglessly indefinite.

In tension with the legality principle is the rule that legislative codes should be reasonably interpreted so as not to frustrate the legislative process.

Contents

International Instruments

Basic principles of legality can be found in the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Geneva Convention:

  • ICCPR Article 15(1)
    • No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
  • UNDHR Article 11(2)
    • No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
  • ECHR: Article 7 - No punishment without law
    • No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  • Geneva Convention
    • Additional Protocol I to the 1949 Geneva Conventions, art. 75(4)(c)(1977)
      • No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
    • Additional Protocol II to the 1949 Geneva Conventions, art. 6(2)(c)(1977)
      • No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

National Laws

The principle of legality has become part of customary international law. The majority of states have constitutional provisions setting out the right of "no crime nor punishment without law." The majority of those that do not have such constitutional provisions have codified the rights through statutes and treaties.

At the close of the Second World War, the status of the principle of legality around the world was mixed. Although many countries had constitutional provisions requiring crimes and punishments to be determined by law, they did not explicitly require non-retroactivity. At the same time, many countries did have explicit provisions. Finally, in many countries, the constitution had no mention at all of legality.

At present, non-retroactivity is virtually a worldwide standard. All but two members of the United Nations accept general non-retroactivity of crimes and punishments by constitution, statute, treaty, or some combination of these three forms of law. The two exceptions are Bhutan and Brunei.

More than four-fifths of U.N. members (161 of 192 or about 84%) recognize non-retroactivity of criminal definitions in their constitutions. Over three-quarters (145 of 192 or about 76%) apply non-retroactivity of increased punishments through their constitutions as well.[2]

International Examples

Kenya

The principle of legality affords to the accused person the right to be tried and punished only in accordance with an existing law. This principle is set forth in Article 50(2)(n) of the Constitution. It enjoins the State from punishing an act or omission, which was not an offence under Kenyan Law or International laws at the time of the commission or omission.

Acts or omissions that constitute crimes in Kenya are defined in the Penal Code. For an act or omission to be charged and tried as a crime, the prosecution must be prepared to present evidence proving the existence of each of the elements of the crime. Consequently, a person cannot be punished under a law that:

  • criminalizes conduct that was not criminal at the time it was committed
  • increases the punishment for a crime after its committed
  • decreases the amount of evidence needed to convict
  • that has not been publicized or that is unclear.



See Rights of the Accused

Notes

  1. Paul H. Robinson, Fair Notice and Fair Adjudication, Two Kinds of Legality, 154 U. OF PENN. L. REV. 335, 2005 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880761).
  2. Kenneth S. Gallant, THE PRINCIPLE OF LEGALITY IN INTERNATIONAL AND COMPARATIVE CRIMINAL LAW, Chapter 7: Legality as a Rule of Customary International Law Today, 2007 (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=997480).