A Modern Treatise on the Principle of Legality in Criminal Law
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Gabriel Hallevy A Modern Treatise on the Principle of Legality in Criminal Law
Assoc.Prof. Gabriel Hallevy ISBN 978-3-642-13713-6 e-isbn 978-3-642-13714-3 DOI 10.1007/978-3-642-13714-3 Springer Heidelberg Dordrecht London New York Library of Congress Control Number: 2010935595 # Springer-Verlag Berlin Heidelberg 2010 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg, Germany Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)
To my wife and daughters.
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But the Lord saw that the wickedness of humankind had become great on the earth. Every inclination of the thoughts of their minds was only evil all the time. The Lord regretted that he had made humankind on the earth, and he was highly offended. So the Lord said, I will wipe humankind, whom I have created, from the face of the earth everything from humankind to animals, including creatures that move on the ground and birds of the air, for I regret that I have made them. Genesis 6:5-7
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Preface The present book is based on the lectures delivered by the author in the past few years as part of the Criminal Law course of the Faculty of Law at the Ono Academic College. There has been little research on the principle of legality in modern criminal law, although this is one of the most ancient legal principles of human society. In recent generations there have been several attempts to define the principle conclusively, but only with regard to some of its aspects. No comprehensive definition of the principle of legality has been attempted to date. A conclusive definition of the principle of legality in criminal law requires both an accurate inward-looking definition of the principle itself, and an outward-looking treatment of its relation with criminal law theory. Only a coherent theory that includes the principle of legality as an integral part of criminal law theory can do justice to the principle of legality. This view is consistent with the scientific concept of law, which regards the law as part of science. A Modern Treatise on the Principle of Legality in Criminal Law is therefore a scientific treatise on one of the four principles of the criminal law. The present treatise is divided into six parts, according to the scientific understanding of the principle of legality in criminal law. Chapter 1 explores the relation between the principle of legality and the general theory of criminal law in the context of the structure and the development of the principle of legality in human society. This chapter outlines the four secondary principles of the principle of legality, and describes them in general terms. Chapters 2 5 discuss in detail each of the four secondary principles of the principle of legality. Chapter 2 discusses the legitimate sources of the criminal norm, Chap. 3 discusses the applicability of the criminal norm in time, Chap. 4 discusses the applicability of the criminal norm in place and Chap. 5 discusses the interpretation of the criminal norm. Each of the four chapters concludes with a discussion of the conflict of laws issues relevant to the secondary principle under investigation. Finally, Chap. 6 addresses the problem of the conflict of laws within the conflicts of laws and rounds out the discussion. ix
x Preface I wish to thank Ono Academic College for supporting this project, and especially Dean of the faculty of law and vice chairman Dudi Schwartz for his staunch support on so many important occasions. I thank Gabriel Lanyi for his comments and Anke Seyfried of Springer Heidelberg for guiding the publication of the book from its inception to its conclusion. Finally, I wish to thank my wife and daughters for the helpful discussions and support they offered along the way. Kiryat Ono, June 2010 Gabriel Hallevy
Contents 1 The Meaning and Structure of the Principle of Legality in Criminal Law... 1 1.1 The Role of the Principle of Legality in the Criminal Law Theory... 1 1.1.1 The Basic Structure of Criminal Law Theory... 1 1.1.2 The Basic Structure of the Principle of Legality in Criminal Law... 5 1.2 Development of the Principle of Legality in Criminal Law and Its Modern Justifications... 8 2 The Legitimate Sources of the Criminal Norm... 15 2.1 The Structure of the Criminal Norm and Its Identification... 16 2.1.1 Valid Conditional Clauses... 16 2.1.2 Criminal Sanction... 17 2.1.3 Classification of Offences Based on Content... 18 2.2 The Legal Sources of the Criminal Norm... 20 2.2.1 General Principles... 20 2.2.2 Legal Sources... 33 2.3 Conflict of Laws Based on Legitimate Sources of the Criminal Norm... 46 3 Applicability of the Criminal Norm in Time... 49 3.1 Basic Distinctions... 49 3.1.1 Distinction Between Procedural and Substantive Criminal Norms... 50 3.1.2 Distinction Between Relevant Points in Time... 51 3.1.3 Distinction Between Continuous, Temporary, and Fragmented Criminal Norms... 55 3.1.4 Distinction Between Mitigating and Aggravating Criminal Norms... 56 xi
xii Contents 3.2 Applicability of the Procedural Criminal Norm in Time... 58 3.2.1 The General Rule... 58 3.2.2 Application of the Rule... 61 3.3 Applicability in Time of the Substantive Criminal Norm... 67 3.3.1 The General Rule... 67 3.3.2 Application of the Rule... 71 3.4 Conflict of Laws Based on Applicability of the Criminal Norm in Time... 78 4 The Applicability of the Criminal Norm in Place... 81 4.1 The Basic Distinctions... 81 4.1.1 Distinction Between Applicability and Jurisdiction in Criminal Law... 82 4.1.2 Distinction Between Procedural and Substantive Criminal Norms in Different Legal Systems... 83 4.1.3 Distinction Between Domestic and Foreign Criminal Norms and Criminal Events... 86 4.1.4 Distinction Between Locally Restricted and Not Restricted Criminal Norms...... 89 4.1.5 Distinction Between the Relevant Factors Connecting the Criminal Event with the Criminal Norm... 90 4.2 Applicability of the Procedural Criminal Norm in Place... 92 4.2.1 The General Rule... 92 4.2.2 Application of the Rule... 95 4.3 Applicability of the Substantive Criminal Norm in Place... 97 4.3.1 The General Rule... 97 4.3.2 The Territorial Application of the General Rule... 100 4.3.3 Extraterritorial Application of the General Rule... 118 4.4 Conflict of Laws Based on the Applicability of the Criminal Norm in Place... 129 4.4.1 The General Rule... 129 4.4.2 International Cooperation and the Extraterritorial Vicarious Applicability... 131 5 Interpretation of the Criminal Norm... 133 5.1 Structure of Interpretation of the Criminal Norm... 133 5.2 Rules of Formulation of the Criminal Norm.... 135 5.2.1 Generality... 135 5.2.2 Feasibility... 137 5.2.3 Clarity and Precision... 138 5.2.4 Relevance of Non-Criminal Norms...... 141 5.3 Rules of Application of the Criminal Norm..... 143 5.3.1 Applicability of the General Principles of Criminal Law... 144 5.3.2 Specific and General Criminal Norms.... 145
Contents xiii 5.3.3 Analogy... 147 5.3.4 Strict and Purposive Interpretations...... 149 5.3.5 Assisting Legal Measures for Revealing the Legal Logic (Ratio Legis) Through the Purposive Interpretation... 152 5.3.6 Mitigating Interpretation... 160 5.4 Conflict of Laws Based on the Interpretation of the Criminal Norm... 163 6 The Conflict of Laws Within the Conflicts of Laws in the Principle of Legality... 165 Cases... 169 Anglo-American Cases... 169 German Cases... 184 European Cases... 186 International Cases... 187 Bibliography... 189 Index... 197
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List of Figures Fig. 1.1 The structure of scientific legal theory..... 3 Fig. 1.2 The structure of criminal law theory.... 6 Fig. 1.3 The basic structure of the principle of legality in criminal law.... 7 Fig. 3.1 First possible relation between relevant points in time.... 54 Fig. 3.2 Second possible relation between relevant points in time.... 54 Fig. 3.3 Third possible relation between relevant points in time... 54 Fig. 3.4 Fourth possible relation between relevant points in time.... 54 Fig. 3.5 Fifth possible relation between relevant points in time.... 54 Fig. 3.6 Sixth possible relation between relevant points in time.... 55 Fig. 3.7 The applicability of the procedural criminal norm in time in the first possible time relation between relevant points in time... 62 Fig. 3.8 The applicability of the procedural criminal norm in time in the second possible time relation between relevant Fig. 3.9 points in time... 63 The applicability of the procedural criminal norm in time in the third possible time relation between relevant points in time... 63 Fig. 3.10 The applicability of the procedural criminal norm in time in the fourth possible time relation between relevant points in time... 64 Fig. 3.11 The applicability of the procedural criminal norm in time in the fifth possible time relation between relevant points in time... 65 Fig. 3.12 The applicability of the procedural criminal norm in time in the sixth possible time relation between relevant points in time... 66 xv
xvi List of Figures Fig. 3.13 Applicability of the substantive criminal norm in time in the first possible relation between relevant points in time... 72 Fig. 3.14 Applicability of the substantive criminal norm in time in the second possible relation between relevant points in time... 73 Fig. 3.15 Applicability of the substantive criminal norm in time in the third possible relation between relevant points in time... 74 Fig. 3.16 Applicability of the substantive criminal norm in time in the fourth possible relation between relevant points in time... 75 Fig. 3.17 Applicability of the substantive criminal norm in time in the fifth possible relation between relevant points in time... 76 Fig. 3.18 Applicability of the substantive criminal norm in time in the sixth possible relation between relevant points in time... 78 Fig. 4.1 The legal process of matching the applicable norm.... 91 Fig. 5.1 Structure of interpretation of the criminal norm.... 134 Fig. 5.2 The general structure of the interpretation of the criminal norm ex post... 144 Fig. 5.3 The logical mechanism of analogy... 149 Fig. 5.4 Three stages of the interpretation... 162 Fig. 6.1 The structure of the conflict of laws within the conflicts of laws... 166
List of Tables Table 4.1 Applicability in place of domestic and foreign norms to domestic and foreign events... 88 Table 4.2 Applicability in place of domestic and foreign procedural criminal norms to the domestic and foreign events.... 95 xvii
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