The Principle of Legality in International and Comparative Criminal Law Introduction, Chapter 1: Legality in Criminal Law, its Purposes, and its Competitors

Abstract

This Introduction and Chapter 1 of a book, Kenneth S Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge Univ. Press 2009).

Chapter 1 introduces the issues raised by the principles of nullum crimen sine lege and nulla poena sine lege, which are the core of the principle of legality in criminal law. It also raises a few other issues of legality in criminal law. It discusses the relationship of legality and retroactivity in criminal law to issues of the rule of law more generally. It discusses both the human rights and criminal law purposes of legality. The emphasis is not only on the prior existence of a criminal law, but of a criminal law that was applicable to the actor at the time of the alleged crime. Finally, this chapter addresses several doctrines and views which could cause erosion or rejection of the principle of legality, including judicial crime creation, expansive interpretation of criminal statutes, analogy, the view that language - and hence criminal law - is always indeterminate, and the lure of authoritarianism.

Keywords: criminal law, legality, non-retroactivity, nullum crimen sine lege, ex post facto, international law, international criminal law