The Principle of Legality

Question 1

What are the four aspects of the legality principle?

Answer 1

1. Lex scripta - The law must be written by the legislator - For separation of powers
2. Lex certa - Criminal liability must be described in a precise manner so that citizens can understand from the wording of the norm what is prohibited. The law must also be accessible via publication.
3. Lex stricta - Prohibits the extensive judicial interpretation of criminal liability
4. Lex Praevia - Prohibits the application of criminal liability in a retroactive manner
   (5. Lex Mitior - Criminal liability must be applied retroactively if it is for the benefit of the accused)

Question 2

What are the rationales behind the legality principle?

Answer 2

1. To prevent uncertainty and state arbitrariness
2. To protect individual autonomy, liberty, democracy, separation of powers and the Rule of Law (subordination of state powers to legal norms)

Question 3

What are the two modern challenges to the legality principle?

Answer 3

1. The German Constitutional Court and the definition of coercion - ‘Force’ cannot encompass psychological force as otherwise it is too difficult to differentiate what is force from what is normal daily part of social life  It would make it impossible to predict
2. The ECtHR and the definition of rape - There is an inevitable element of judicial interpretation necessary for the elucidation of doubtful points and for the adaptation to changing circumstances provided that the result of interpretation is consistent with the essence of the offence and was reasonably foreseeable