Legality

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Legality can be defined as an act, agreement, or contract that is consistent with the law or state of being lawful or unlawful in a given jurisdiction.

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According to the Merriam-Webster Dictionary, legality is 1 : attachment to or observance of law. 2 : the quality or state of being legal [1] Businessdictionary.com, thelawdictionary.org, and mylawdictionary.org definition explains concept of attachment to law as Implied warranty that an act, agreement, or contract strictly adheres to the statutes of a particular jurisdiction. For example, in insurance contracts it is assumed that all risks covered under the policy are legal ventures. The second definition cited by Businessdictionary.com, the Legal principle that an accused may not be prosecuted for an act that is not declared a crime in that jurisdiction is actually about the Principle of legality which is part of the overall concept of legality. [2] [3]

Definitions

Vicki Schultz [4] states that we collectively have a shared knowledge about most concepts. How we interpret the reality of our actual understanding of a concept manifests itself through the different individual narratives that we tell about the origins and meanings of a particular concept. The difference in narratives, about the same set of facts, is what divides us. An individual has the ability to frame, or understand, something very differently than the next person. Evidence does not always lead to a clear attribution of the specific cause or meaning of an issue – meanings are derived through narratives. Reality, and the facts that surround it, are personally subjective and laden with assumptions based on clearly stated facts. Anna-Maria Marshall [5] states, this shift in framing happens because our perceptions depend “on new information and experiences;” this very idea is the basis of Ewick and Sibley definition of legality – our everyday experiences shape our understanding of the law.

Ewik and Silbey define "legality" more broadly as, those meanings, sources of authority, and cultural practices that are in some sense legal although not necessarily approved or acknowledged by official law. The concept of legality the opportunity to consider "how where and with what effect law is produced in and through commonplace social interactions....How do our roles and statuses our relationships, our obligations, prerogatives and responsibilities, our identities and our behavoiurs bear the imprint of law. [6]

Joel Henry Silbey was an American historian.

In a paper on Normative Phenomena of Morality, Ethics and Legality, legality is defined taking the state's role in to account as, The system of laws and regulations of right and wrong behavior that are enforceable by the state (federal, state, or local governmental body in the U.S.) through the exercise of its policing powers and judicial process, with the threat and use of penalties, including its monopoly on the right to use physical violence. [7]

Principle of legality

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. [8] It is closely related to legal formalism and the rule of law and can be traced from the writings of Feuerbach, Dicey and Montesquieu.

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the large number of decided cases implies a large number of principles, formalists believe that there is an underlying logic to these principles that is straightforward and which legal experts can readily discover. The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate system that could be applied mechanically. Formalism has been called 'the official theory of judging'. It is the thesis to which legal realism is the antithesis.

Rule of law Political situation where every citizen is subject to the law

The rule of law is defined in the Oxford English Dictionary as: "The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society are considered equally subject to publicly disclosed legal codes and processes." The phrase "the rule of law" refers to a political situation, not to any specific legal rule.

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.

Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender.

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of the administrative units of government that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.

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). A law that violates the principle by retroactively making actions illegal that were committed before the enactment of the law is called an ex post facto law .

Rule of law provides for availability of rules, laws and legal mechanism to implement them. Principle of legality checks for availability and quality of the laws. Legality checks for if certain behaviour is according to law or not. concept of Legitimacy of law looks for fairness or acceptability of fairness of process of implementation of law.

quality of being legal and observance to the law may pertain to lawfullness, i.e. being consistent to the law or it may get discussed in principle of legality or may be discussed as legal legitimacy.

Legality of purpose

In contract law, legality of purpose is required of every enforceable contract. One can not validate or enforce a contract to do activity with unlawful purpose. [9]

Constitutional legality

The principle of legality can be affected in different ways by different constitutional models. In the United States, laws may not violate the stated provisions of the United States Constitution which includes a prohibition on retrospective laws. In Britain under the doctrine of Parliamentary sovereignty, the legislature can (in theory) pass such retrospective laws as it sees fit, though article 7 of the European 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 retroactive (normally criminal) laws[ citation needed ]. 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.

International law

Legality, in its criminal aspect, is a principle of international human rights law, and is incorporated into the Universal Declaration of Human Rights, 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 recognized by civilized 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 criticized for applying retrospective criminal sanctions.

The territorial principle, generally confining national jurisdiction to a nation’s borders, has been expanded to accommodate extraterritorial, national interest.

In criminal law, the principle of legality assures the primacy of law in all criminal proceedings.

Bibliography

See also

Related Research Articles

Crime unlawful act forbidden and punishable by criminal law

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence is an act harmful not only to some individual but also to a community, society or the state. Such acts are forbidden and punishable by law.

Paul Johann Anselm Ritter von Feuerbach German legal scholar

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.

A brocard is a legal maxim in Latin that is, in a strict sense, derived from traditional legal authorities, even from ancient Rome. The word is a variant of the Latinized name of Burchard of Worms, Bishop of Worms, Germany, who compiled 20 volumes of Ecclesiastical Rules.

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 and codified in modern democratic states as a basic requirement of the rule of law. It has been described as "one of the most 'widely held value-judgement[s] in the entire history of human thought'".

An ex post facto law is a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

Crimen may refer to:

A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense, usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under the medieval and pre-historic beliefs of right of conquest. Since the Korean War of the early 1950s, waging such a war of aggression is a crime under the customary international law. Possibly the first trial for waging aggressive war is that of the Sicilian king Conradin in 1268.

Prejudice is a legal term with different meanings when used in criminal, civil, or common law. Often the use of prejudice in legal context differs from the more common use of the word and thus has specific technical meanings implied by its use.

A retrospective, generally, is a look back at events that took place, or works that were produced, in the past. As a noun, retrospective has specific meanings in medicine, software development, popular culture and the arts. It is applied as an adjective, synonymous with the term retroactive, to laws, standards, and awards.

Adolfo Scilingo is a former Argentine naval officer who is serving 30 years in a Spanish prison after being convicted on April 19, 2005 for crimes against humanity, including extra-judicial execution.

International law also known as "law of nations" is the name of a body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general principles of law as recognized by civilized nations, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

Non bis in idem, which translates literally from Latin as "not twice in the same [thing]", is a legal doctrine to the effect that no legal action can be instituted twice for the same cause of action. It is a legal concept originating in Roman civil law, but it is essentially the equivalent of the double jeopardy doctrine found in common law jurisdictions.

Postmodernist school (criminology)

The postmodernist school in criminology applies postmodernism to the study of crime and criminals. It is based on an understanding of "criminality" as a product of the use of power to limit the behaviour of those individuals excluded from power, but who try to overcome social inequality and behave in ways which the power structure prohibits. It focuses on the identity of the human subject, multiculturalism, feminism, and human relationships to deal with the concepts of "difference" and "otherness" without essentialism or reductionism, but its contributions are not always appreciated. Postmodernists shift attention from Marxist concerns of economic and social oppression to linguistic production, arguing that criminal law is a language to create dominance relationships. For example, the language of courts expresses and institutionalises the domination of the individual, whether accused or accuser, criminal or victim, by social institutions. According to postmodernist criminology, the discourse of criminal law is dominant, exclusive and rejecting, less diverse, and culturally not pluralistic, exaggerating narrowly defined rules for the exclusion of others.

United States v. Hudson and Goodwin, 11 U.S. 32 (1812), was a case in which the United States Supreme Court held that Congress must first enact a constitutional law criminalizing an activity, attach a penalty, and give the federal courts jurisdiction over the offense in order for the court to render a conviction.

Everything which is not forbidden is allowed

"Everything which is not forbidden is allowed" is a constitutional principle of English law—an essential freedom of the ordinary citizen or subject. The converse principle—"everything which is not allowed is forbidden"—used to apply to public authorities, whose actions were limited to the powers explicitly granted to them by law. The restrictions on local authorities were lifted by the Localism Act 2011 which granted a "general power of competence" to local authorities. The German constitution Art. 2(1) of the GG protects the general freedom to act, as demonstrated e.g. by the judgment of the Bundesverfassungsgericht known as “Reiten im Walde”.

This collection of lists of law topics collects the names of topics related to law. Everything related to law, even quite remotely, should be included on the alphabetical list, and on the appropriate topic lists. All links on topical lists should also appear in the main alphabetical listing. The process of creating lists is ongoing – these lists are neither complete nor up-to-date – if you see an article that should be listed but is not, please update the lists accordingly. You may also want to include Wikiproject Law talk page banners on the relevant pages.

United Nations Security Council Resolution 955 United Nations Security Council resolution

United Nations Security Council resolution 955, adopted on 8 November 1994, after recalling all resolutions on Rwanda, the Council noted that serious violations of international humanitarian law had taken place in the country and, acting under Chapter VII of the United Nations Charter, established the International Criminal Tribunal for Rwanda (ICTR).

Common law offences are crimes under English criminal law and the related criminal law of other Commonwealth countries. They are offences under the common law, developed entirely by the law courts, and therefore have no specific bases in statute.

Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007

The Criminal Law Amendment Act, 2007 is an act of the Parliament of South Africa that reformed and codified the law relating to sex offences. It repealed various common law crimes and replaced them with statutory crimes defined on a gender-neutral basis. It expanded the definition of rape, previously limited to vaginal sex, to include all non-consensual penetration; and it equalised the age of consent for heterosexual and homosexual sex at 16. The act provides various services to the victims of sexual offences, including free post-exposure prophylaxis for HIV, and the ability to obtain a court order to compel HIV testing of the alleged offender. It also created the National Register for Sex Offenders, which records the details of those convicted of sexual offences against children or people who are mentally disabled.

Law of North Korea

The Law of North Korea is a codified civil law system inherited from the Japanese and influenced by the Soviet Union. It is governed by a socialist constitution and operates within the political system of North Korea.

References

  1. "Definition of LEGALITY". merriam-webster.com.
  2. "What is legality? definition and meaning". businessdictionary.com.
  3. "What is LEGALITY? definition of LEGALITY (Black's Law Dictionary)". thelawdictionary.org.
  4. Schultz, Vicki (1 January 1990). "Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument". Harvard Law Review. 103 (8): 1749–1843. doi:10.2307/1341317. JSTOR   1341317.
  5. Marshall, Anna-Maria (1 July 2003). "Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment". Law & Social Inquiry. 28 (3): 659–689. doi:10.1111/j.1747-4469.2003.tb00211.x.
  6. Berman, Paul Schiff (27 February 2012). Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cambridge University Press. ISBN   978-0-521-76982-2 via Google Books.
  7. Erhard, Werner; Jensen, Michael C.; Zaffron, Steve (2009). "Integrity: A Positive Model that Incorporates the Normative Phenomena of Morality, Ethics and Legality". SSRN Electronic Journal. doi:10.2139/ssrn.920625.
  8. Robinson, Paul H. (2005). "Fair Notice and Fair Adjudication: two kinds of legality".
  9. Litvin, Michael (15 September 2009). "Legality of purpose – contracts". cornell.edu.