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''Nulla poena sine lege'' (
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through ...
for "no penalty without law",
Anglicized Anglicisation is the process by which a place or person becomes influenced by English culture or British culture, or a process of cultural and/or linguistic change in which something non-English becomes English. It can also refer to the influenc ...
pronunciation: ) is a
legal Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
principle which states 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 The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
. It has been described as "one of the most 'widely held value-judgement in the entire history of human thought.


Requirements

In modern European criminal law, e.g. of the Constitutional Court of Germany, the principle of ''nulla poena sine lege'' has been found to consist of four separate requirements: ;''Nulla poena sine lege praevia'': There is to be no penalty without ''previous'' law. This prohibits
ex post facto law An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize action ...
s, and the retroactive application of criminal law. It is a basic
maxim Maxim or Maksim may refer to: Entertainment * ''Maxim'' (magazine), an international men's magazine ** ''Maxim'' (Australia), the Australian edition ** ''Maxim'' (India), the Indian edition *Maxim Radio, ''Maxim'' magazine's radio channel on Sir ...
in mainland European legal thinking. It was written by
Paul Johann Anselm Ritter von Feuerbach Paul Johann Anselm Ritter von Feuerbach (14 November 177529 May 1833) 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. ...
as part of the Bavarian Criminal Code in 1813. ;''Nulla poena sine lege scripta'': There is to be no penalty without ''written'' law. That is, criminal prohibitions must be set out in written legal instruments of general application, normally
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
s, adopted in the form required by constitutional law. This excludes
customary law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...
as a basis of criminal punishment. ;''Nulla poena sine lege certa'': There is to be no penalty without ''well-defined'' law. This provides that a penal statute must define the punishable conduct and the penalty with sufficient definiteness. This to allow citizens to foresee when a specific action would be punishable, and to conduct themselves accordingly, a rule expressed in the general principle of
legal certainty Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. The legal system needs to permit those subject to the law to regulate their condu ...
in matters of criminal law. It is recognised or codified in many national jurisdictions, as well as e.g. by the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
as a "general principle of
Union law European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
". ;''Nulla poena sine lege stricta'': There is to be no penalty without ''exact'' law. This prohibits the application by analogy of statutory provisions in criminal law.


In common law

One complexity is the lawmaking power of judges under
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
. 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. In
English criminal law English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, i ...
there are offences of
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
origin. For example,
murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
is still a
common law offence Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. State laws. They are offences under the common law, developed entirely by the law courts, having no specific ...
and lacks a statutory definition. The Homicide Act 1957 did not include a statutory definition of murder (or any other homicidal offence). Therefore, the definition of murder was the subject of no fewer than six appeals to the House of Lords within the following 40 years (''Director of Public Prosecutions v. Smith''
961 Year 961 (Roman numerals, CMLXI) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * March 6 – Siege of Chandax: Byzantine forces under Nikephoro ...
A.C. 290; ''Hyam v. Director of Public Prosecutions'' 975A.C. 55; ''Regina v. Cunningham''
982 Year 982 ( CMLXXXII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Emperor Otto II (the Red) assembles an imperial expeditionary force at Tar ...
A.C. 566; ''Regina v. Moloney'' 985A.C. 905; ''Regina v. Hancock'' 986A.C. 455; ''Regina v. Woollin'' 9984 A11 E.R. 103 (H.L.)).


In natural law

The legal principle ''nulla poena sine lege'' as principle in natural law is due to the contention of scholars of the
Scholasticism Scholasticism was a medieval school of philosophy that employed a critical organic method of philosophical analysis predicated upon the Aristotelian 10 Categories. Christian scholasticism emerged within the monastic schools that translat ...
about the preconditions of a guilty conscience. In relation to the
Ezekiel Ezekiel (; he, יְחֶזְקֵאל ''Yəḥezqēʾl'' ; in the Septuagint written in grc-koi, Ἰεζεκιήλ ) is the central protagonist of the Book of Ezekiel in the Hebrew Bible. In Judaism, Christianity, and Islam, Ezekiel is ac ...
-commentary of
Jerome Jerome (; la, Eusebius Sophronius Hieronymus; grc-gre, Εὐσέβιος Σωφρόνιος Ἱερώνυμος; – 30 September 420), also known as Jerome of Stridon, was a Christian priest, confessor, theologian, and historian; he is co ...
,
Thomas Aquinas Thomas Aquinas, Dominican Order, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino, Italy, Aquino; 1225 – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest who was an influential List of Catholic philo ...
and
Francisco Suárez Francisco Suárez, (5 January 1548 – 25 September 1617) was a Spanish Jesuit priest, philosopher and theologian, one of the leading figures of the School of Salamanca movement, and generally regarded among the greatest scholastics after Thoma ...
analysed the formal conditions of the punishment of
conscience Conscience is a cognitive process that elicits emotion and rational associations based on an individual's moral philosophy or value system. Conscience stands in contrast to elicited emotion or thought due to associations based on immediate sens ...
. Thomas located the conditions within the synderesis. For him it is a formal and active part of the human soul. Understanding of activity, which is in accordance with the human nature, is formal possible due to the synderesis. Hence the synderesis contains in the works of patristic authors a law which commands how the human as human has to act. In the individual case this law is contentual definite. For the scholastic this is shown in the action of the intellect. This action is named since Thomas ''conscientia''. A possible content of the ''conscientia'' is the punishment in concordance with the content of the synderesis, in case the human has had not act in concordance with the human nature. An example for the punishment is madness, which since antiquity is a punishment of conscience. The
Oresteia The ''Oresteia'' ( grc, Ὀρέστεια) is a trilogy of Greek tragedies written by Aeschylus in the 5th century BCE, concerning the murder of Agamemnon by Clytemnestra, the murder of Clytemnestra by Orestes, the trial of Orestes, the end o ...
is a famous example for this. According Suárez the punishment of conscience is the insight in an obligation to act in concordance with the human nature to undo a past misdeed. This insight obligates to impossible actions due to the fact that the misdeed is in the past and hence it is unchangeable. Therefore the ''conscientia'' obligates in concordance with the synderesis to do an impossible action. Hence the ''conscientia'' restricts conscientious persons by doing a limitation on their own will. For they are unable to think about any other action than to fulfil their obligation. Inasmuch the conscientia restricts the intellect the scholastic speak of it as a ''malum'' or ''malum metaphysicum'', because the limitation is related to a metaphysical quality of a human. The law is constituted by the human nature itself from what the ''malum metaphysicum'' is inflicted. Therefore the punishment of the conscience is executed because of a violation of
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
. When coming to terms with the Nazi crimes after World War II in Austria, the Austrian legal scholar and judge Wilhelm Malaniuk justified the admissibility of the non-application of the "nulla poena sine lege" with regard to the Austrian
Verbotsgesetz 1947 The Verbotsgesetz 1947 (Prohibition Act 1947), abbreviated VerbotsG, is an Austrian constitutional law originally passed on 8 May 1945 (Victory in Europe Day) and amended multiple times, most significantly in February 1947 and in 1992. It banned t ...
: "Because these are crimes that are so grossly violate the laws of humanity!" Regarding war crimes law and war crimes related to command structures, Malaniuk said: “In the war instigated by the National Socialists, the requirements of humanity as well as the principles of international law and martial law were violated to such an extent that it was no longer just the government that was believed to be responsible for this, but also the individual citizens, because they knew had to that their actions grossly violate the principles, compliance with which must be demanded from every member of the occidental culture."


In cases of universal jurisdiction

The question of
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
may sometimes come to contradict this principle. For example,
customary international law Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
allows the prosecution of
pirate Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, v ...
s 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 Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the ...
(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''. Since the
Nuremberg Trials The Nuremberg trials were held by the Allies of World War II, Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II. Between 1939 and 1945 ...
,
penal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
is taken to include the prohibitions of international criminal law, in addition to those of domestic law. Thus, prosecutions have been possible of such individuals as
Nazi Nazism ( ; german: Nazismus), the common name in English for National Socialism (german: Nationalsozialismus, ), is the far-right totalitarian political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in ...
war criminals and officials of the
German Democratic Republic German(s) may refer to: * Germany (of or related to) ** Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **G ...
responsible for the
Berlin Wall The Berlin Wall (german: Berliner Mauer, ) was a guarded concrete barrier that encircled West Berlin from 1961 to 1989, separating it from East Berlin and East Germany (GDR). Construction of the Berlin Wall was commenced by the gover ...
, even though their deeds may have been allowed or even ordered by domestic law. Also, courts when dealing with such cases will tend to look to the letter of the law at the time, even in regimes where the law as it was written was generally disregarded in practice by its own authors. However, some legal scholars criticize this, because generally, in the legal systems of mainland Europe where the maxim was first developed, "penal law" was taken to mean
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
penal law, so as to create a guarantee to the individual, considered as a fundamental right, that he would not be prosecuted for an action or omission that was not considered a crime according to the statutes passed by the legislators in force at the time of the action or omission, and that only those penalties that were in place when the infringement took place would be applied. Also, even if one considers that certain actions are prohibited under general principles of international law, critics point out that a prohibition in a general principle does not amount to the establishment of a crime, and that the rules of international law also do not stipulate specific penalties for the violations. In an attempt to address those criticisms, the statute of the recently established
International Criminal Court The International Criminal Court (ICC or ICCt) is an intergovernmental organization and International court, international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to pro ...
provides for a system in which crimes and penalties are expressly set out in written law, that shall only be applied to future cases. See Article 22 of the
Rome Statute The Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome, Italy on 17 July 1998Michael P. Scharf (August 1998)''Results of the ...
, however this is under the proviso, in Article 22(3) that this only applies to the ICC, and "doesn't affect the characterization of any conduct as criminal under international law independently of he Rome Statute. The principle of nulla poena sine lege, insofar as it applies to general criminal law, is enshrined in several national constitutions, and international instruments, see
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, article 7(1). However, when applied to international criminal/humanitarian law, the same legal instruments often allow for ex post facto application of the law. See ECHR, article 7(2), which states that article 7(1) "shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."See also


See also

* Everything which is not forbidden is allowed *
Ex post facto law An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize action ...
*
List of Latin legal terms A number of Latin terms are used in legal terminology and legal maxims. This is a partial list of these terms, which are wholly or substantially drawn from Latin. __TOC__ Common law Civil law Ecclesiastical law See also * ...
* ''
Nulla poena sine culpa {{italic title ''Nulla poena sine culpa'' ( Latin for "no punishment without fault" or "no punishment without culpability") or the guilt principle is a legal principle requiring that one cannot be punished for something that they are not guilty o ...
'' * Radbruch formula * Rechtsstaat * 1942-43
Riom Trial The Riom Trial (french: Procès de Riom; 19 February 1942 – 21 May 1943) was an attempt by the Vichy France regime, headed by Marshal Philippe Pétain, to prove that the leaders of the French Third Republic (1870–1940) had been responsible for ...


Notes


References

* {{refend Brocards (law) Criminal law Legal rules with Latin names Legal doctrines and principles