Principle of legality: Difference between revisions
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'''Principle of legality''' is the principle of '''the common law''' that is most often inerpreted as '''an assumption''' that the Parliament never interferes with the fundamental law rights, freedoms, rules and immunities and if it does, or is forced to interfere, as the change meant to be made concerns of the fundamental laws, it has to be communicated in a clear, understandable way<ref>Chen B. (2018). [http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/04/UNSWLJ_41_2_CHEN_advance.pdf ''‘The French Court and the Principle of Legality’''] "University of New South Wales Law Journal", vol. 41</ref>. However, what is important to note, the principle of legality does not only concern Parliaments and governments, but it also influences courts and judiciary [[system]]. | |||
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==The influence of the principle== | |||
== The influence of the principle == | |||
The principle of legality, in the simplest way, influents numerous institutions and people: | The principle of legality, in the simplest way, influents numerous institutions and people: | ||
* Parliament and government | * Parliament and government | ||
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The principle of legality not only protects the people from teh illegal changes in their law, but it also influences a lot the accusational system of the criminal justice. In the name of the Article 7 of the Human Rights "No punishment without law", the courts cannot put a person in jail if the law they are based on does not include the action as a felony or a crime<ref>Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''], "Melbourne University Law Review", vol.41</ref>. | The principle of legality not only protects the people from teh illegal changes in their law, but it also influences a lot the accusational system of the criminal justice. In the name of the Article 7 of the Human Rights "No punishment without law", the courts cannot put a person in jail if the law they are based on does not include the action as a felony or a crime<ref>Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''], "Melbourne University Law Review", vol.41</ref>. | ||
== The problems with interpretation of the principle == | ==The problems with interpretation of the principle== | ||
In general, there are problems with the full interpretation of the principle, depending on the system they affect. Some of the law commentators understand the principle of legality as the overarching principle and should impose new inteerpetations and rules of work on every aspect of the governments actions. This interpretation however, creates problems, as while looking at it one may see that they promote independent values that are external to the statutory text, rather than putting across linguistic conventions<ref>Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''] "Melbourne University Law Review", vol.41</ref>. The other problem might erupt in the case of the felony, that is only submitted as a crime in the inteernational law - for example, if the European Union's laws consider the [[action]] a crime, should one of the countries that are in the European Union charge the person who committed the action as a criminal, even thought he constitution of the country does not recognize this specific action as a crime? The principle of legality should make it easier for courts to recognize who is gilty and who is not, but situation similar to the one mentioned above is just the example of how troubling it might be to use that principle. In the situation mentioned the difficulty is in recongnizing which law is to be put higher - the general law of the country or the general law of the European Union<ref>Mariniello T. (2013). [https://repository.edgehill.ac.uk/5249/1/NORD_082_02_02_Marinello.pdf ''The ‘Nuremberg Clause’ and Beyond: Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence''] "Nordic Journal of International Law", vol. 82</ref> | In general, there are problems with the full interpretation of the principle, depending on the system they affect. Some of the law commentators understand the principle of legality as the overarching principle and should impose new inteerpetations and rules of work on every aspect of the governments actions. This interpretation however, creates problems, as while looking at it one may see that they promote independent values that are external to the statutory text, rather than putting across linguistic conventions<ref>Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''] "Melbourne University Law Review", vol.41</ref>. The other problem might erupt in the case of the felony, that is only submitted as a crime in the inteernational law - for example, if the European Union's laws consider the [[action]] a crime, should one of the countries that are in the European Union charge the person who committed the action as a criminal, even thought he constitution of the country does not recognize this specific action as a crime? The principle of legality should make it easier for courts to recognize who is gilty and who is not, but situation similar to the one mentioned above is just the example of how troubling it might be to use that principle. In the situation mentioned the difficulty is in recongnizing which law is to be put higher - the general law of the country or the general law of the European Union<ref>Mariniello T. (2013). [https://repository.edgehill.ac.uk/5249/1/NORD_082_02_02_Marinello.pdf ''The ‘Nuremberg Clause’ and Beyond: Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence''] "Nordic Journal of International Law", vol. 82</ref> | ||
== Footnotes == | ==Footnotes== | ||
<references/> | <references/> | ||
== References == | {{infobox5|list1={{i5link|a=[[Gift in trust]]}} — {{i5link|a=[[Ethical values]]}} — {{i5link|a=[[Crisis of work - the overcome]]}} — {{i5link|a=[[Special resolution]]}} — {{i5link|a=[[Socialism]]}} — {{i5link|a=[[Personal ethics]]}} — {{i5link|a=[[Arms length price]]}} — {{i5link|a=[[Teritorial government]]}} — {{i5link|a=[[Precautionary principle]]}} }} | ||
==References== | |||
* Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''] "Melbourne University Law Review", vol.41 | * Cardell-Oliver F. (2017). [https://law.unimelb.edu.au/__data/assets/pdf_file/0004/2454772/Cardell-Oliver-411-Advance.pdf ''Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality''] "Melbourne University Law Review", vol.41 | ||
* Chen B. (2018). [http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/04/UNSWLJ_41_2_CHEN_advance.pdf ''‘The French Court and the Principle of Legality’''] "University of New South Wales Law Journal", vol. 41 | * Chen B. (2018). [http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/04/UNSWLJ_41_2_CHEN_advance.pdf ''‘The French Court and the Principle of Legality’''] "University of New South Wales Law Journal", vol. 41 | ||
Latest revision as of 02:30, 18 November 2023
Principle of legality is the principle of the common law that is most often inerpreted as an assumption that the Parliament never interferes with the fundamental law rights, freedoms, rules and immunities and if it does, or is forced to interfere, as the change meant to be made concerns of the fundamental laws, it has to be communicated in a clear, understandable way[1]. However, what is important to note, the principle of legality does not only concern Parliaments and governments, but it also influences courts and judiciary system.
The influence of the principle
The principle of legality, in the simplest way, influents numerous institutions and people:
- Parliament and government
It protects the people from the parliaments' unruly and illegal actions. It makes it close to impossible for Parliament to change the law of the country or to work on the new rules, if they are not compatible with what the earlier stated laws that functions within the country tells. In other way, the administrative power cannot base their actions on a, for example, the bylaw of the head of the government. The new rules made by the administration have to be based on the general law that applies to everyone.
- Institutions
The principle of legality not only protects the people from teh illegal changes in their law, but it also influences a lot the accusational system of the criminal justice. In the name of the Article 7 of the Human Rights "No punishment without law", the courts cannot put a person in jail if the law they are based on does not include the action as a felony or a crime[2].
The problems with interpretation of the principle
In general, there are problems with the full interpretation of the principle, depending on the system they affect. Some of the law commentators understand the principle of legality as the overarching principle and should impose new inteerpetations and rules of work on every aspect of the governments actions. This interpretation however, creates problems, as while looking at it one may see that they promote independent values that are external to the statutory text, rather than putting across linguistic conventions[3]. The other problem might erupt in the case of the felony, that is only submitted as a crime in the inteernational law - for example, if the European Union's laws consider the action a crime, should one of the countries that are in the European Union charge the person who committed the action as a criminal, even thought he constitution of the country does not recognize this specific action as a crime? The principle of legality should make it easier for courts to recognize who is gilty and who is not, but situation similar to the one mentioned above is just the example of how troubling it might be to use that principle. In the situation mentioned the difficulty is in recongnizing which law is to be put higher - the general law of the country or the general law of the European Union[4]
Footnotes
- ↑ Chen B. (2018). ‘The French Court and the Principle of Legality’ "University of New South Wales Law Journal", vol. 41
- ↑ Cardell-Oliver F. (2017). Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality, "Melbourne University Law Review", vol.41
- ↑ Cardell-Oliver F. (2017). Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality "Melbourne University Law Review", vol.41
- ↑ Mariniello T. (2013). The ‘Nuremberg Clause’ and Beyond: Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence "Nordic Journal of International Law", vol. 82
| Principle of legality — recommended articles |
| Gift in trust — Ethical values — Crisis of work - the overcome — Special resolution — Socialism — Personal ethics — Arms length price — Teritorial government — Precautionary principle |
References
- Cardell-Oliver F. (2017). Parliament, the Judiciary and Fundamental Rights: The Strength of the Principle of Legality "Melbourne University Law Review", vol.41
- Chen B. (2018). ‘The French Court and the Principle of Legality’ "University of New South Wales Law Journal", vol. 41
- Mariniello T. (2013). The ‘Nuremberg Clause’ and Beyond: Legality Principle and Sources of International Criminal Law in the European Court’s Jurisprudence "Nordic Journal of International Law", vol. 82
Author: Olga Muryn
