WEEK 1: Introduction, Theories of Punishment, The Principle of Legality
Fletcher, Chapter 1, Introduction (p. 7-10)
Substantive rules: define the crimes that are punished in the particular state or country “guilt in
principle”
Rule of procedure: determine how the state enforces the criminal law by proving the occurrence of crime
and convicting and punishing those responsible for the crime “guilty in fact”
Jacques Claessen, Theories of punishment, in: Keiler & Roef (eds.), Comparative Concepts of
Criminal Law 2019, Paragraphs 1, 2, 3 and 4
Retribution and/or prevention most important justifications and goals of punishment
Retribution: they deserve their punishment because the crimes they committed are not yet atoned for
The ECtHR states that, over time, rehabilitation becomes a more important goal of punishment than
retribution
- Life imprisonment
- “life means life” Netherlands and UK
- Other European countries have a review mechanism where someone’s life sentence can
be reviewed after a certain period of time
- No life imprisonment Norway; lasts up to 21 years, and after this period an offender
can only be detained if they still pose an unacceptable danger to society
Retribution and prevention conflict in some cases
- Retributive perspective: imprisonment might be desired to atone for the crime
- Some offences are so serious that a judge cannot impose any other type of punishment
than imprisonment
- Preventive perspective: community service or electronic detention might be a more appropriate
sentence; sometimes punishment is waived altogether
- Imprisonment can have a negative effect on offenders (loss of house, job, family, etc.)
, - Empirical studies demonstrate that community and electronic detention are more
effective than imprisonment in terms of reducing reoffending
Christina Peristeridou, The Principle of Legality, in: Keiler & Roef (eds.), Comparative concepts of
Criminal Law 2019
The principle of legality deals with the question of whether or not and under which preconditions
behaviour is prohibited.
- Requires that an act can be prohibited by criminal law only when there is a provision that
punishes this behaviour
- Nullum crimen nulla poena sine lege = there is no crime without law
- Based on the thesis that the immorality or harmfulness of an action are not enough to justify a
state response in the form of criminal prosecution
The four aspects of the legality principle (Feuerbach)
1. Lex scripta
- Obliges judges to base criminal liability only on written statues as opposed to customary laws
2. Lex certa
- Requires that criminal liability be described in a precise manner so that citizens can understand
from the wording of the norm what is prohibited
3. Lex stricta
- Prohibits the extensive judicial interpretation of criminal liability (reasoning by analogy)
4. Lex praevia
- Prohibits the legislator and the judge to draft and apply – respectively – criminal liability in a
retroactive manner
- § 1 GCC: ‘An act may only be punished if criminal liability had been established by law
before the act was committed.’
The legality principle is embedded in all European legal systems.
- National codes, constitutions, and international instruments
- Art. 7 ECHR
, - Art. 49 of the Charter of Fundamental Rights of the European Union
Rule of Law: a polity should be governed by ‘law’ as opposed to arbitrary decisions of state authorities
- Advocates for the subordination of the state-powers to legal norms
- Democratic Rule of Law: a polity governed by laws of democratic procedure
- Principle of democracy: an expression of political autonomy, citizenship, and equality
- Criminal laws produced by democratic procedures find their legitimation in that
they are products of the general will, which individuals, as potential victims and
perpetrators, have agreed upon
- Separation of powers
- Montesquieu and trias politica
LECTURE
Legality principle
- Art. 103 German Constitution/ Art. 1 Criminal Code
- “An act can only be punished if its criminality had been legally determined before the act
was committed.”
- Art. 7 subs. 1 ECHR
- “No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time of the criminal offence was committed.”
Justifications of the legality principle
- Foreseeability fairness; every citizen has the right to know in advance what behaviour can lead
to what sanction
- Instrumental function/prevention about the government, when they make criminal offences,
they want to influence the behaviour of citizens
, Exception: lex mitior-clause
If the law effective at the time of the completion of the offence is changed before the judgement, the most
lenient law is to be applied.
- Cancellation or restriction of a criminal provision
- Mitigation of the punishment
- New grounds of justification or excuse
Theories of Punishment
What is punishment?
- It is assumed to be unpleasant for the recipient
- Infliction is intentional
- In response to breaking the law
- Person punished has broken the law voluntarily
- It is the belief of the person who orders the punishment that settles the question whether it is
punishment
Retributivism Utilitarianism
Punishment is deserved Punishment is useful
Deontological (doing the right thing, no matter the Consequentialistic (everything only judged based
consequences) on the consequences)
Backward-looking Forward-looking
Punishment is good Punishment is evil
Positive retributivism: the guilt must be punished to the extent of their deserts
Negative retributivism: the guilty may be punished to the extent of their deserts
Mixed theory: within the bounds of deserts, the amount of punishment is determined by utilitarian and/or
retributive principles
Fletcher, Chapter 1, Introduction (p. 7-10)
Substantive rules: define the crimes that are punished in the particular state or country “guilt in
principle”
Rule of procedure: determine how the state enforces the criminal law by proving the occurrence of crime
and convicting and punishing those responsible for the crime “guilty in fact”
Jacques Claessen, Theories of punishment, in: Keiler & Roef (eds.), Comparative Concepts of
Criminal Law 2019, Paragraphs 1, 2, 3 and 4
Retribution and/or prevention most important justifications and goals of punishment
Retribution: they deserve their punishment because the crimes they committed are not yet atoned for
The ECtHR states that, over time, rehabilitation becomes a more important goal of punishment than
retribution
- Life imprisonment
- “life means life” Netherlands and UK
- Other European countries have a review mechanism where someone’s life sentence can
be reviewed after a certain period of time
- No life imprisonment Norway; lasts up to 21 years, and after this period an offender
can only be detained if they still pose an unacceptable danger to society
Retribution and prevention conflict in some cases
- Retributive perspective: imprisonment might be desired to atone for the crime
- Some offences are so serious that a judge cannot impose any other type of punishment
than imprisonment
- Preventive perspective: community service or electronic detention might be a more appropriate
sentence; sometimes punishment is waived altogether
- Imprisonment can have a negative effect on offenders (loss of house, job, family, etc.)
, - Empirical studies demonstrate that community and electronic detention are more
effective than imprisonment in terms of reducing reoffending
Christina Peristeridou, The Principle of Legality, in: Keiler & Roef (eds.), Comparative concepts of
Criminal Law 2019
The principle of legality deals with the question of whether or not and under which preconditions
behaviour is prohibited.
- Requires that an act can be prohibited by criminal law only when there is a provision that
punishes this behaviour
- Nullum crimen nulla poena sine lege = there is no crime without law
- Based on the thesis that the immorality or harmfulness of an action are not enough to justify a
state response in the form of criminal prosecution
The four aspects of the legality principle (Feuerbach)
1. Lex scripta
- Obliges judges to base criminal liability only on written statues as opposed to customary laws
2. Lex certa
- Requires that criminal liability be described in a precise manner so that citizens can understand
from the wording of the norm what is prohibited
3. Lex stricta
- Prohibits the extensive judicial interpretation of criminal liability (reasoning by analogy)
4. Lex praevia
- Prohibits the legislator and the judge to draft and apply – respectively – criminal liability in a
retroactive manner
- § 1 GCC: ‘An act may only be punished if criminal liability had been established by law
before the act was committed.’
The legality principle is embedded in all European legal systems.
- National codes, constitutions, and international instruments
- Art. 7 ECHR
, - Art. 49 of the Charter of Fundamental Rights of the European Union
Rule of Law: a polity should be governed by ‘law’ as opposed to arbitrary decisions of state authorities
- Advocates for the subordination of the state-powers to legal norms
- Democratic Rule of Law: a polity governed by laws of democratic procedure
- Principle of democracy: an expression of political autonomy, citizenship, and equality
- Criminal laws produced by democratic procedures find their legitimation in that
they are products of the general will, which individuals, as potential victims and
perpetrators, have agreed upon
- Separation of powers
- Montesquieu and trias politica
LECTURE
Legality principle
- Art. 103 German Constitution/ Art. 1 Criminal Code
- “An act can only be punished if its criminality had been legally determined before the act
was committed.”
- Art. 7 subs. 1 ECHR
- “No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time of the criminal offence was committed.”
Justifications of the legality principle
- Foreseeability fairness; every citizen has the right to know in advance what behaviour can lead
to what sanction
- Instrumental function/prevention about the government, when they make criminal offences,
they want to influence the behaviour of citizens
, Exception: lex mitior-clause
If the law effective at the time of the completion of the offence is changed before the judgement, the most
lenient law is to be applied.
- Cancellation or restriction of a criminal provision
- Mitigation of the punishment
- New grounds of justification or excuse
Theories of Punishment
What is punishment?
- It is assumed to be unpleasant for the recipient
- Infliction is intentional
- In response to breaking the law
- Person punished has broken the law voluntarily
- It is the belief of the person who orders the punishment that settles the question whether it is
punishment
Retributivism Utilitarianism
Punishment is deserved Punishment is useful
Deontological (doing the right thing, no matter the Consequentialistic (everything only judged based
consequences) on the consequences)
Backward-looking Forward-looking
Punishment is good Punishment is evil
Positive retributivism: the guilt must be punished to the extent of their deserts
Negative retributivism: the guilty may be punished to the extent of their deserts
Mixed theory: within the bounds of deserts, the amount of punishment is determined by utilitarian and/or
retributive principles
