Nullum crimen, nulla poena sine lege
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''Nulla poena sine lege'' ( Latin for "no penalty without law", Anglicized pronunciation: ) is a legal 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 Britannica ...
. 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 laws, and the retroactive application of criminal law. It is a basic maxim 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 le ...
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 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 Un ...
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 val ...
". ;''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. 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 there are offences of common law origin. For example,
murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
is still a common law offence 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'' 961A.C. 290; ''Hyam v. Director of Public Prosecutions'' 975A.C. 55; ''Regina v. Cunningham'' 982A.C. 566; ''Regina v. Moloney'' 985A.C. 905; ''Regina v. Hancock'' 986A.C. 455; ''Regina v. Woollin''
998 Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
4 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 translate ...
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 acknow ...
-commentary of Jerome, Thomas Aquinas 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 Thomas ...
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 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. When coming to terms with the Nazi crimes after World War II in Austria, the Austrian legal scholar and judge
Wilhelm Malaniuk Wilhelm Malaniuk (born June 26, 1906, in Oberndorf near Eger in the Austro-Hungarian Empire; died December 20, 1965 in Vienna) was an Austrian judge and legal scholar. Life Wilhelm Malaniuk grew up in Baden near Vienna. His father Lukas Malaniu ...
justified the admissibility of the non-application of the "nulla poena sine lege" with regard to the Austrian Verbotsgesetz 1947: "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 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 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 United Nations Security Council Resolution 1674, adopted unanimously on April 28, 2006, after reaffirming resolutions 1265 (1999) and 1296 (2000) concerning the protection of civilians in armed conflict and Resolution 1631 (2005) on co-operatio ...
"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, penal 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 war criminals and officials of the German Democratic Republic 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 government ...
, 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 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 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, 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 He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
. 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, 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 *
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 * B ...
* ''
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 of. ...
'' * 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