Nulla poena sine lege
Encyclopedia
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. It is related to the principle of "nullum crimen, nulla poena sine praevia lege poenali
", which means penal law cannot be enacted retroactively.
One complexity is the lawmaking power of judges under common law
. Even in civil law
systems that do not admit judge-made law, it is not always clear when the function of interpretation of the criminal law ends and judicial lawmaking begins.
The question of jurisdiction
may sometimes come to contradict this principle. For example, customary international law
allows the prosecution of pirates by any country (applying universal jurisdiction
), even if they did not commit crimes at the area that falls under this country's law. A similar principle has appeared in the recent decades with regard to crimes of genocide
(see genocide as a crime under domestic law); and UN Security Council Resolution 1674 "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" even if the State in which the population is being assaulted does not recognise these assaults as a breach of domestic law. However, it seems that universal jurisdiction is not to be expanded substantially to other crimes, so as to satisfy Nulla poena sine lege.
The argument has been proposed that this exercise does not violate nulla poena sine lege, since these acts, even if not prohibited under the law of any country, are in violation of international law, which many legal theorists view as being equally law. However, this view depends on accepting as law mere intent, presumption and personal preference, rather than something that has been formally codified, which is a step many legal practicians are not quite prepared to make, all theories aside.
Natural law
theorists or divine command theorists
would further add that nulla poena sine lege is not violated if the punished act is against natural law or the law of God, respectively, even if it violates no positive law.
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...
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. It is related to the principle of "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...
", which means penal law cannot be enacted retroactively.
One complexity is the lawmaking power of judges under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Even in civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems that do not admit judge-made law, it is not always clear when the function of interpretation of the criminal law ends and judicial lawmaking begins.
The question of jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
may sometimes come to contradict this principle. For example, customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
allows the prosecution of pirates by any country (applying universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
), even if they did not commit crimes at the area that falls under this country's law. A similar principle has appeared in the recent decades with regard to crimes of 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...
(see genocide as a crime under domestic law); and UN Security Council Resolution 1674 "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity" even if the State in which the population is being assaulted does not recognise these assaults as a breach of domestic law. However, it seems that universal jurisdiction is not to be expanded substantially to other crimes, so as to satisfy Nulla poena sine lege.
The argument has been proposed that this exercise does not violate nulla poena sine lege, since these acts, even if not prohibited under the law of any country, are in violation of international law, which many legal theorists view as being equally law. However, this view depends on accepting as law mere intent, presumption and personal preference, rather than something that has been formally codified, which is a step many legal practicians are not quite prepared to make, all theories aside.
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...
theorists or divine command theorists
Divine command theory
Divine command theory is the meta-ethical view about the semantics or meaning of ethical sentences, which claims that ethical sentences express propositions, some of which are true, about the attitudes of God...
would further add that nulla poena sine lege is not violated if the punished act is against natural law or the law of God, respectively, even if it violates no positive law.
See also
- Everything which is not forbidden is allowedEverything which is not forbidden is allowedEverything which is not forbidden is allowed is a constitutional principle of English law — an essential freedom of the ordinary citizen. The converse principle — everything which is not allowed is forbidden — applies to public authorities, whose actions are limited to the powers...
- Ex post facto lawEx post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
- 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...