Legality

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Legality, in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power.

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Merriam-Webster defines legality as "1: attachment to or observance of law. 2: the quality or state of being legal." [1]

Businessdictionary.com, thelawdictionary.org, and mylawdictionary.org definition explains concept of attachment to law as "Implied warranty that an act, agreement, or contract strictly adheres to the statutes of a particular jurisdiction. For example, in insurance contracts it is assumed that all risks covered under the policy are legal ventures."

Definitions

Vicki Schultz [2] states that we collectively have a shared knowledge about most concepts. How we interpret the reality of our actual understanding of a concept manifests itself through the different individual narratives that we tell about the origins and meanings of a particular concept. The difference in narratives, about the same set of facts, is what divides us. An individual has the ability to frame, or understand, something very differently than the next person. Evidence does not always lead to a clear attribution of the specific cause or meaning of an issue – meanings are derived through narratives. Reality, and the facts that surround it, are personally subjective and laden with assumptions based on clearly stated facts. Anna-Maria Marshall [3] states, this shift in framing happens because our perceptions depend "on new information and experiences"; this very idea is the basis of Ewick and Sibley definition of legality – our everyday experiences shape our understanding of the law.

Ewik and Silbey define "legality" more broadly as "those meanings, sources of authority, and cultural practices that are in some sense legal although not necessarily approved or acknowledged by official law. The concept of legality the opportunity to consider how where and with what effect law is produced in and through commonplace social interactions. ... How do our roles and statuses our relationships, our obligations, prerogatives and responsibilities, our identities and our behavoiurs bear the imprint of law." [4]

In a paper on Normative Phenomena of Morality, Ethics and Legality, legality is defined taking the state's role in to account as "The system of laws and regulations of right and wrong behavior that are enforceable by the state (federal, state, or local governmental body in the U.S.) through the exercise of its policing powers and judicial process, with the threat and use of penalties, including its monopoly on the right to use physical violence." [5]

Rule of law provides for availability of rules, laws and legal mechanism to implement them. Principle of legality checks for availability and quality of the laws. Legality checks for if certain behaviour is according to law or not. concept of Legitimacy of law looks for fairness or acceptability of fairness of process of implementation of law.

The quality of being legal and observance to the law may pertain to lawfulness, i.e. being consistent to the law or it may get discussed in principle of legality or may be discussed as legal legitimacy.

Legality of purpose

In contract law, legality of purpose is required of every enforceable contract. One can not validate or enforce a contract to do activity with unlawful purpose. [6]

Constitutional legality

The principle of legality can be affected in different ways by different constitutional models. In the United States, laws may not violate the stated provisions of the United States Constitution which includes a prohibition on retrospective laws. In the United Kingdom under the doctrine of Parliamentary sovereignty, the legislature can (in theory) pass such retrospective laws as it sees fit, though article 7 of the European Convention on Human Rights, which has legal force in Britain, forbids conviction for a crime which was not illegal at the time it was committed. Article 7 has already had an effect in a number of cases in the British courts.

In contrast many written constitutions prohibit the creation of retroactive (normally criminal) laws.[ citation needed ] However the possibility of statutes being struck down creates its own problems. It is clearly more difficult to ascertain what is a valid statute when any number of statutes may have constitutional question marks hanging over them. When a statute is declared unconstitutional, the actions of public authorities and private individuals which were legal under the invalidated statute, are retrospectively tainted with illegality. Such a result could not occur under parliamentary sovereignty (or at least not before Factortame ) as a statute was law and its validity could not be questioned in any court.

Principle of legality

The principle that no one be convicted of a crime without a written legal text which clearly describes the crime is widely accepted and codified in modern democratic states as a basic requirement of the rule of law. It is known in Latin as nulla poena sine lege .

International law

Legality, in its criminal aspect, is a principle of international human rights law, and is incorporated into the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. However the imposition of penalties for offences illegal under international law or criminal according to "the general principles of law recognized by civilized nations" are normally excluded from its ambit. As such the trial and punishment for genocide, war crimes and crimes against humanity does not breach international law.

There is some debate about whether this is really a true exception or not. Some people would argue that it is a derogation or – perhaps somewhat more harshly – an infringement of the principle of legality. While others would argue that crimes such as genocide are contrary to natural law and as such are always illegal and always have been. Thus imposing punishment for them is always legitimate. The exception and the natural law justification for it can be seen as an attempt to justify the Nuremberg trials and the trial of Adolf Eichmann, both of which were criticized for applying retrospective criminal sanctions.

The territorial principle, generally confining national jurisdiction to a nation’s borders, has been expanded to accommodate extraterritorial, national interest.

In criminal law, the principle of legality assures the primacy of law in all criminal proceedings.

Bibliography

See also

Related Research Articles

<span class="mw-page-title-main">Philosophy of law</span> Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

Nulla poena sine lege is a legal 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. As some laws are unwritten 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.

<span class="mw-page-title-main">Nuremberg principles</span> Guidelines for determining what constitutes a war crime

The Nuremberg principles are a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.

Legal positivism is a school of thought of philosophy of law and jurisprudence which holds that law is constructed from social facts, without regards to the merits of such law. It was developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. Some of the most prominent legal positivist writers of the 20th century have been Hans Kelsen, H. L. A. Hart, and Joseph Raz.

An ex post facto law is a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; it may extend the statute of limitations; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly used in the United Kingdom and other Commonwealth jurisdictions instead of "landmark case", as used in the United States.

<span class="mw-page-title-main">War of aggression</span> Military conflict waged without the justification of self-defense

A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense, usually for territorial gain and subjugation, in contrast with the concept of a just war.

<span class="mw-page-title-main">Hans Kelsen</span> Austrian jurist and legal philosopher (1881–1973)

Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the principal architect of the 1920 Austrian Constitution, which with amendments is still in operation. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced out of his university post after the Nazi seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and in 1940 he moved to the United States. In 1934, Roscoe Pound lauded Kelsen as "undoubtedly the leading jurist of the time". While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on social psychology and sociology.

Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as Reine Rechtslehre, and in 1960 in a much revised and expanded edition. The latter was translated into English in 1967 as Pure Theory of Law. The title is the name of his general theory of law, Reine Rechtslehre.

<span class="mw-page-title-main">Superior orders</span> Criminal defense of following the orders of a superior

Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, or the civilian population, should not be considered guilty of committing crimes that were ordered by a superior officer or official.

<span class="mw-page-title-main">Law</span> System of rules and guidelines, generally backed by governmental authority

Law is a set of rules that are created and are 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 science and as the art of justice. State-enforced laws can be made by a group legislature or by a single legislator, resulting in statutes; by the executive through decrees and regulations; or established by judges through precedent, usually in common law jurisdictions. Private individuals may create legally binding contracts, including arbitration agreements that adopt alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and also serves as a mediator of relations between people.

Social dangerousness is a category of anti-social behaviour on the basis of detectors of dangerousness that enable the judicial authorities to justify the need for a particular control by the police authorities.

<span class="mw-page-title-main">Everything which is not forbidden is allowed</span> Constitutional principle

"Everything which is not forbidden is allowed" is a legal maxim. It is the concept that any action can be taken unless there is a law against it. It is also known in some situations as the "general power of competence" whereby the body or person being regulated is acknowledged to have competent judgement of their scope of action.

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 basis in statute.

A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authorities issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide by, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, which regulates the conduct of people, and generality, which is binding on an indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding on them, such as soldiers and public officials.

Nulla poena sine culpa or the guilt principle is a legal principle requiring that one cannot be punished for something that they are not guilty of. It is recognized as a human right by the Court of Justice of the European Union and all Council of Europe member states. Under this principle, a person can not be punished if he or she is not guilty. Cases of force majeure or necessity are exempted from criminal responsibility. Furthermore, it establishes that no one can be liable for the crimes committed by another person.

<span class="mw-page-title-main">French criminal law</span>

French criminal law is "the set of legal rules that govern the State's response to offenses and offenders". It is one of the branches of the juridical system of the French Republic. The field of criminal law is defined as a sector of French law, and is a combination of public and private law, insofar as it punishes private behavior on behalf of society as a whole. Its function is to define, categorize, prevent, and punish criminal offenses committed by a person, whether a natural person or a legal person. In this sense it is of a punitive nature, as opposed to civil law in France, which settles disputes between individuals, or administrative law which deals with issues between individuals and government.

The principle of legality in French criminal law holds that no one may be convicted of a criminal offense unless a previously published legal text sets out in clear and precise wording the constituent elements of the offense and the penalty which applies to it. (Latin:Nullum crimen, nulla pœna sine lege, in other words, "no crime, no penalty, without a law").

The principle of legality in criminal law was developed in the eighteenth century by the Italian criminal lawyer Cesare Beccaria and holds that no one can be convicted of a crime without a previously published legal text which clearly describes the crime. This principle is accepted and codified in modern democratic states as a basic requirement of the rule of law. It has been described as "one of the most 'widely held value-judgement[s] in the entire history of human thought '".

The Principle of Legality is an important legal doctrine in Australian public law.

References

  1. "Definition of LEGALITY". merriam-webster.com. 14 June 2023.
  2. Schultz, Vicki (1 January 1990). "Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument". Harvard Law Review. 103 (8): 1749–1843. doi:10.2307/1341317. JSTOR   1341317.
  3. Marshall, Anna-Maria (1 July 2003). "Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment". Law & Social Inquiry. 28 (3): 659–689. doi:10.1111/j.1747-4469.2003.tb00211.x. S2CID   145186120.
  4. Berman, Paul Schiff (27 February 2012). Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. Cambridge University Press. ISBN   978-0-521-76982-2 via Google Books.
  5. Erhard, Werner; Jensen, Michael C.; Zaffron, Steve (2009). "Integrity: A Positive Model that Incorporates the Normative Phenomena of Morality, Ethics and Legality". doi:10.2139/ssrn.920625. S2CID   142746354.{{cite journal}}: Cite journal requires |journal= (help)
  6. Litvin, Michael (15 September 2009). "Legality of purpose – contracts". cornell.edu.