Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgments
- Table of Abbreviations
- Introduction
- 1 Legal Nature
- 2 Phenomenological Considerations
- 3 Emergence in Positive International Law
- 4 Post-Charter Developments
- 5 The Principles of Legality in the London Charter and Post-Charter Developments
- 6 Specific Contents
- 7 The Theories and Elements of Criminal Responsibility
- 8 Defenses and Exonerations
- 9 A Survey of National Legislation and Prosecutions for Crimes Against Humanity
- 10 Concluding Assessment: The Need for an International Convention
- Table of Authorities
- Table of Cases
- Index
5 - The Principles of Legality in the London Charter and Post-Charter Developments
Published online by Cambridge University Press: 05 July 2011
- Frontmatter
- Contents
- Preface
- Acknowledgments
- Table of Abbreviations
- Introduction
- 1 Legal Nature
- 2 Phenomenological Considerations
- 3 Emergence in Positive International Law
- 4 Post-Charter Developments
- 5 The Principles of Legality in the London Charter and Post-Charter Developments
- 6 Specific Contents
- 7 The Theories and Elements of Criminal Responsibility
- 8 Defenses and Exonerations
- 9 A Survey of National Legislation and Prosecutions for Crimes Against Humanity
- 10 Concluding Assessment: The Need for an International Convention
- Table of Authorities
- Table of Cases
- Index
Summary
Autoritas, non Veritas facit Legem.
– Thomas Hobbes, Liviathan: Sive de Materia, Forma, et Poestate Civitatis Ecclesiasticae et Civilis III (1841)Introduction
The principles of legality have been recognized in some form or another in all the world's criminal justice systems. This recognition ranges from the rigid positivistic approach of the Germanic and other Roman-Civilist legal systems to the more flexible common law system. The latter recognizes the principle of analogy in statutory interpretation, while the former systems reject analogy as a violation of the principles of legality. Some legal systems, like the Shari'a (Islamic legal system), apply the principles to certain crimes (hudud crimes) as rigidly as the positivistic legal systems, but recognize the application of judicially made law for other crimes, like qisas and ta'azir crimes. The ex post facto clause of the U.S. Constitution prohibits the legislative branches of the federal and state governments from passing retroactive legislation.
The principles of legality are not deemed by many systems to apply to procedural and evidentiary norms and standards, and there is diversity in legal systems as to judicial interpretation by analogy, and how far it can go.
Due to the history and evolution of ICL, the principles of legality as they emerged from the world's major legal systems have always been treated with a degree of relativism.
- Type
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- Information
- Crimes against HumanityHistorical Evolution and Contemporary Application, pp. 296 - 358Publisher: Cambridge University PressPrint publication year: 2011