The Principle of Legality Beyond the State
- Eda Deniz Koselleck
- hace 2 días
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Actualizado: hace 14 horas
Rule of Law, Criminal Responsibility and Democratic Authority in Domestic and International Legal Orders
Written by: Eda Deniz Koselleck
The principle of legality, traditionally expressed through the maxim “nullum crimen, nulla poena sine lege”, directly translated as “no crime, no punishment without law”, is widely regarded as a foundational requirement of the rule of law. It can simply be explained as an individual’s exemption from prosecution or punishment for conduct unless that conduct was classified as criminal and subject to penalty at the time it was committed. While the classical function of the rule of law was to constrain judicial arbitrariness in domestic criminal justice systems through fair, transparent, and impartial legal processes, the principle has undergone significant transformation in contemporary public and international law.
This article examines the evolution of the principle of legality across domestic and international legal orders. It argues that legality now performs a dual constitutional function. The first, being the safeguarding of individual autonomy and legal certainty in criminal law and human rights jurisprudence, and the second, being the structural principle and comparative constitutional doctrine, mediating the exercise of public power in democratic and international governance.
Across all legal systems and traditions, the idea that individuals should not be punished or subjected to state power except pursuant to law and within proper jurisdiction is regarded as
an elementary requirement of justice, reflecting the moral intuition that law must guide human conduct rather than retrospectively condemning it. Yet, despite this apparent universality, the principle of legality has varied extensively depending on its legal contexts.
For example, in domestic criminal law, legality traditionally demands precise legislative definition and strict non-retroactivity. However, in international criminal law, it has been recalibrated to accommodate the absence of a global legislation and the moral imperative to punish atrocities. Moreover, in constitutional and administrative law, it has evolved into a doctrine of interpretation limiting executive discretion.
But before delving into its current functions, let us get a closer historical look. The modern principle of legality emerged in the eighteenth century as a response to arbitrary judicial power and indeterminate criminal norms. Enlightenment thinkers such as Cesare Beccaria and Montesquieu argued that criminal punishment should be governed by clear, prospective laws enacted by representative institutions, and should not work retrospectively, since retrospective criminalisation was regarded as incompatible with justice and political liberty.
These ideas were constitutionalised in revolutionary instruments such as the French Declaration of the Rights of Man and of the Citizen (1789) and subsequently embedded in civil law traditions across Europe. At this stage, legality was primarily a shield against judicial arbitrariness. Its focus was formal and institutional. However, following the Second World War, legality was elevated from a domestic criminal principle to an international human rights norm. Article 11(2) of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Civil and Political Rights (ICCPR) prohibit retrospective criminal punishment and excessive penalties. Article 7 of the European Convention on Human Rights (ECHR) provides the most robust judicially enforceable formulation.
Notably, international human rights law reframed legality as a requirement not merely of formal legislation, but also of the quality of law. The European Court of Human Rights has consistently held that criminal norms must be accessible, foreseeable, and sufficiently precise to protect individuals against arbitrary interference. Legality, thus, incorporates substantive constraints on legislative and executive power, extending beyond strict non-retroactivity. At the same time, Article 7 ECHR contains an explicit exception for acts which were criminal; "according to the general principles of law recognised by civilised nations"; This clause reflects an unresolved tension at the heart of international legality which can be expressed as its motivation to uphold legal certainty, while avoiding impunity for universally condemned conduct.
So, as can be seen, the principle of legality today functions less as a rigid formal rule and more as a normative framework through which legal systems balance authority, accountability, and moral responsibility.
To put in simpler words, the principle´s contemporary significance lies not in its uniform application, but in its capacity to expose the conditions under which power claims legitimacy across domestic and international legal orders.
In an era of expanding international jurisdiction, executive discretion, and moralised legal discourse, the principle of legality remains an indispensable, “if imperfect”, anchor of the rule
of law.
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