''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 spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

for "no penalty without law",

Anglicized Anglicisation or anglicization is a form of cultural assimilation whereby something non-English becomes assimilated into or influenced by the culture of England. It can be sociocultural, in which a non-English place adopts the English language ...

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, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

formula which, in its narrow interpretation, states that one can only be punished for doing something if a penalty for this behavior is fixed in

criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...

. As some laws are unwritten (e.g. in

oral law An oral law is a code of conduct in use in a given culture, religion or community application, by which a body of rules of human behaviour is transmitted by oral tradition and effectively respected, or the single rule that is orally transmitted. M ...

customary law A legal custom is the established pattern of behavior 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, consuetudinary or unofficial law) exists wher ...

) and laws can be interpreted broadly, it does not necessarily mean that an action will not be punished simply because a specific rule against it is not codified. The variant ''nullum crimen sine lege'' ("no crime without law") establishes that conduct is not criminal if not found among the behavior/circumstance combinations of a statute. The other interpretations of the formula include the rules prohibiting retroactive criminalization and prescribing laws to be strictly construed. Despite the use of

Latin language Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...

and brocard-like appearance, the formula was mostly born in 18th century

liberalism Liberalism is a Political philosophy, political and moral philosophy based on the Individual rights, rights of the individual, liberty, consent of the governed, political equality, the right to private property, and equality before the law. ...

(some elements of non-retroactivity of laws and limiting the punishment to the one prescribed in the statute date back to

Roman times In modern historiography, ancient Rome is the Roman civilisation from the founding of the Italian city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th century AD. It encompasses the Roman Kingd ...

). This principle is accepted and codified in modern democratic states as a basic requirement of the

rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...

. 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 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 actions that were ...

s, and the retroactive application of criminal law. It is a basic

maxim Maxim or Maksim may refer to: Entertainment *Maxim (magazine), ''Maxim'' (magazine), an international men's magazine ** Maxim (Australia), ''Maxim'' (Australia), the Australian edition ** Maxim (India), ''Maxim'' (India), the Indian edition *Maxim ...

mainland Europe Continental Europe or mainland Europe is the contiguous mainland of Europe, excluding its surrounding islands. It can also be referred to ambiguously as the European continent, – which can conversely mean the whole of Europe – and, by so ...

an 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 law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

s, adopted in the form required by constitutional law. This excludes

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. See also * * *Due process *International human rights law International human ...

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), officially 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 Union, it is tasked with interpreting ...

as a "general principle of Union law". ;''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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

. 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

origin. For example,

murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

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 specif ...

and lacks a statutory definition. The

Homicide Act 1957 The Homicide Act 1957 ( 5 & 6 Eliz. 2. c. 11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in ...

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'' 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 European philosophical movement or methodology that was the predominant education in Europe from about 1100 to 1700. It is known for employing logically precise analyses and reconciling classical philosophy and Ca ...

about the preconditions of a guilty conscience. In relation to the

Ezekiel Ezekiel, also spelled Ezechiel (; ; ), was an Israelite priest. The Book of Ezekiel, relating his visions and acts, is named after him. The Abrahamic religions acknowledge Ezekiel as a prophet. According to the narrative, Ezekiel prophesied ...

-commentary of

Jerome Jerome (; ; ; – 30 September 420), also known as Jerome of Stridon, was an early Christian presbyter, priest, Confessor of the Faith, confessor, theologian, translator, and historian; he is commonly known as Saint Jerome. He is best known ...

Thomas Aquinas Thomas Aquinas ( ; ; – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest, the foremost Scholasticism, Scholastic thinker, as well as one of the most influential philosophers and theologians in the W ...

and Francisco Suárez analysed the formal conditions of the punishment of

conscience A conscience is a Cognition, cognitive process that elicits emotion and rational associations based on an individual's ethics, moral philosophy or value system. Conscience is not an elicited emotion or thought produced by associations based on i ...

. 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'' () is a trilogy of Greek tragedies written by Aeschylus in the 5th century BC, concerning the murder of Agamemnon by Clytemnestra, the murder of Clytemnestra by Orestes, the trial of Orestes, the end of the curse on the House ...

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 (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...

. 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: "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' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

may sometimes come to contradict this principle. For example,

customary international law Customary international law consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...

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 valuable goods, or taking hostages. Those who conduct acts of piracy are call ...

s by any country (applying

universal jurisdiction Universal jurisdiction is a legal principle that allows Sovereign state, states or International organization, international organizations to prosecute individuals for serious crimes, such as genocide, War crime, war crimes, and crimes against hu ...

), 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 violence that targets individuals because of their membership of a group and aims at the destruction of a people. Raphael Lemkin, who first coined the term, defined genocide as "the destruction of a nation or of an ethnic group" by ...

(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 The 2005 World Summit was a United Nations summit held between 14 and 16 September 2005 at the U.N. headquarters in New York City. It was a follow-up summit meeting to the U.N.'s 2000 Millennium Summit (which formulated the Millennium Declara ...

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 #REDIRECT Nuremberg trials {{redirect category shell, {{R from other capitalisation{{R from move ...

penal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is esta ...

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 (), formally named National Socialism (NS; , ), is the far-right politics, far-right Totalitarianism, totalitarian socio-political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in Germany. During H ...

war criminal A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostage ...

s and officials of the

German Democratic Republic East Germany, officially known as the German Democratic Republic (GDR), was a country in Central Europe from Foundation of East Germany, its formation on 7 October 1949 until German reunification, its reunification with West Germany (FRG) on ...

responsible for the

Berlin Wall The Berlin Wall (, ) was a guarded concrete Separation barrier, barrier that encircled West Berlin from 1961 to 1989, separating it from East Berlin and the East Germany, German Democratic Republic (GDR; East Germany). Construction of the B ...

, 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 law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

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) 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 prosecute ...

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 R ...

, 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 a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...

, 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

Notes

References

* * * {{cite journal , last1=Richer , first1=Etienne , last2=Du Puy-Montbrun , first2=Bernard , title=L'art de juger en droit pénal canonique selon le principe de la légalité des délits et des peines. Revue pénitentiaire et de droit pénal , journal = Revue pénitentiaire et de droit pénal , url=https://hal.science/hal-02497674/document , date=2017 , language=fr Brocards (law) Criminal law Legal rules with Latin names Legal doctrines and principles