Fair Notice and Fair Adjudication: Two Kinds of Legality
64 Pages Posted: 7 Feb 2006 Last revised: 3 Sep 2009
We distinguish our form of government and our legal system from others by our commitment to the rule of law. In the criminal law, in particular, this commitment is aggressively enforced through a series of doctrines that taken together demand a prior legislative enactment of a prohibition expressed with precision and clarity, traditionally bannered as the legality principle. But it is argued in this article that the traditional legality principle analysis conflates two distinct issues: one relating to the ex ante need for fair notice, the other to the ex post concern for fair adjudication. There are in fact two different kinds of legality - rules legality and adjudication legality - that suggest different, and sometimes conflicting, conclusions about the proper formulation and application of the legality doctrines. The criminal law would be better served, it is argued, by giving these two principles independent recognition and application.
Several rationales are offered in support of the traditional legality principle: providing fair notice, gaining compliance with criminal law rules, including effective deterrence and avoiding over-deterrence (chilling effect), reserving the criminalization authority to the legislature, increasing uniformity in application, and reducing the potential for abuse of discretion. What has not been previously understood is that the first three rationales address how the criminal law should perform its ex ante function of announcing the rules of conduct, a function that is carried out primarily by the objective requirements of offenses definitions and by justification defenses. And the last three address how the criminal law should perform its ex post function of adjudicating a violation of the rules of conduct, a function that is carried out primarily by the culpability requirements of offenses definitions and by excuse defenses.
Thus, to effectively further the rationales of legality, the criminal law should recognize two principles - rules legality and adjudication legality - and should apply each of the six legality doctrines differently according to that function of the criminal law being performed by the criminal law rule to which it is being applied. A failure to adjust application of legality doctrines according to the function of the criminal law rule to which they are being applied, as is common in some aspects of current law, undermines the success of the purposes we seek to advance by our commitment to legality.
Keywords: criminal law, legality, vagueness, discretion, fair notice, strict construction, ex post facto
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