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. 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. [1] [2]

Contents

Definitions

Vicki Schultz [3] 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 [4] 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. [5]

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. [6]

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. [7] 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). 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. [8]

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

Paul Johann Anselm Ritter von Feuerbach German legal scholar

Paul Johann Anselm Ritter von Feuerbach was a German legal scholar. His major achievement was a reform of the Bavarian penal code which led to the abolition of torture and became a model for several other countries. He is also well-known for his work on Kaspar Hauser.

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'".

The Nuremberg principles are a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.

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.

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.

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Non bis in idem, which translates literally from Latin as "not twice against 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.

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Everything which is not forbidden is allowed

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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.

Nulla poena sine culpa or the guilt principle is a legal principle requiring that one cannot be punished for something that they are not guilty of. It is recognized as a human right by the Court of Justice of the European Union and all Council of Europe member states. Under this principle, a person can not be punished if he or she is not guilty. Cases of force majeure or necessity are exempted from criminal responsibility. Furthermore, it establishes that no one can be liable for the crimes committed by another person.

References

  1. "What is legality? definition and meaning". businessdictionary.com.
  2. "What is LEGALITY? definition of LEGALITY (Black's Law Dictionary)". thelawdictionary.org.
  3. 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.
  4. 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.
  5. 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.
  6. Erhard, Werner; Jensen, Michael C.; Zaffron, Steve (2009). "Integrity: A Positive Model that Incorporates the Normative Phenomena of Morality, Ethics and Legality". doi:10.2139/ssrn.920625.Cite journal requires |journal= (help)
  7. Robinson, Paul H. (2005). "Fair Notice and Fair Adjudication: two kinds of legality".
  8. Litvin, Michael (15 September 2009). "Legality of purpose – contracts". cornell.edu.