Colloque "From the Judge's Arbitrium to the Legality Principle. Legislation as a Source of Law in Criminal Trials", Ghent (Gand, Belgique), 28 nov-1er déc. 2010

Information transmise par A. Mergey:

Colloque

From the Judge's Arbitrium to the Legality Principle

Legislation as a Source of Law in Criminal Trials

Ghent (Gand, Belgique)

28.11.2010 – 01.12.2010

Programme

SUNDAY, November 28th

19.00-19.45 Coming together drink in the lobby of the Marriott hotel (Korenlei 10: +32 (0)9 233 93 93 – www.marriottghent.com).
20.00 Dinner in restaurant Brasil (E.Braunplein 15 (cellar ‘Bourdon Gallery)): +32 (0)9 225 75 97 –www.restaurantbrasil.be)  

MONDAY, November 29th

• 9.00-9.10 Welcome by professor Piet Taelman, dean of the Ghent Law Faculty

• 9.10-9.15 Introduction to the theme of the conference (by Markus, Heikki and Georges)

• 9.15 Georges MARTYN, Text based decisions in criminal matters before the introduction of the legalityprinciple in the county of Flanders
• 10.00 Sébastien DHALLUIN, Control of the criminal judge of the Parliament of Flanders’ arbitrium by royallegislation

10.45 Coffee break

• 11.00 Heikki PIHLAJAMÄKI, Swedish pre-positivism
• 11.45 Mathias SCHMOECKEL, From the “sententia ex plenitudine potestatis” to “Machtspruch”. Prehistory of an independent judicature

12.30 Sandwich lunch (13.15-14.25 For those interested: one hour guided walk through the town centre – part I)

• 14.30 Marju LUTS, The legislation and the legality principle in the penal law of the Baltic Provinces of the Russian empire
• 15.15 Tatiana BORISOVA, The Legality Principle and its Alternatives in Russia

16.00 Coffee break

• 16.15 Anthony MUSSON, Criminal legislation and the common law in late medieval England
• 17.00 Markus Dirk DUBBER, The (non)history of the legality principle in the United States

17.45 Question time and debate

20.00 Dinner at the university restaurant ‘Het Pand’ (Onderbergen 1: +32 (0)9 264 83 03)

TUESDAY, November 30th

• 9.15 Kimmo NUOTIO, The history of the principle of legality as a legal principle
• 10.00 Sylvain SOLEIL, Adoption and exportation of the legality principle by the French system

10.45 Coffee break

• 11.00 Alejandro AGUERO, On the arbitrium in criminalibus in the Spanish colonial order and the problematic enforcement of the legality principle in the early criminal law in Argentina (18th – 19th centuries)
• 11.45 Matthew MIROW, The Legality Principle and the Constitution of Cadiz

12.30 Cold meal (13.15-14.25 For those interested: one hour guided walk through the town centre – part II)

• 14.30 Aniceto MASFERRER DOMINGO, Principle of Legality and Codification in the Western Criminal Law Reform
• 15.15 António Manuel HESPANHA, The pale shade of legality: the resilience of arbitrary criminal iudicia after the Revolutions

16.00 Coffee break

• 16.15 James WHITMAN, Legality: the Common Law Deviation

17.00 Questions and debate

• Conclusions (by Georges, Heikki and Markus)

19.00 Reception at the provincial government (Gouvernementstraat 1)
20.00 Dinner

WEDNESDAY, December 1st

8.15 Departure for Bruges (from the Marriott hotel)
9.00 Guided tour in Bruges
11.00 Free visit of the Brugge Musea
12.30 Lunch in Bruges
14.00 Back to Gent (PM For those interested: visit to one or more Ghent museums)

Lieu

All sessions will take place in the ‘Faculteitsraadzaal’ (Faculty Board Room) of the Faculty of Law,
Voldersstraat 3 (+32 (0)9 264 68 53)

Abstracts

• Alejandro AGÜERO (CONICET- Universidad Nacional de Córdoba-Argentina. HICOES-España), On the arbitrium in criminalibus in the Spanish colonial order and the problematic enforcement of the legality principle in the early criminal law in Argentina (18th – 19th centuries).

The Spanish legal culture of the Ancien Régime, the Castilian one to be more precise, had a particular stage in the colonial world. According to the ancient Roman principle that the accessory should follow the fortunes of the principal, the Castilian jurists understood that the Spanish American colonies, as incorporated territory by accession to the Crown of Castile, should be governed by Castilian law. Consequently, the study of colonial institutional practice can serve not only to know the local adaptations of the Castilian legal culture, but also to review some aspects of its own settings. Through an extensive analysis of records of criminal trial led by local judges of a colonial peripheral region (Cordoba del Tucuman), I will try to show that the exercise of arbitrium was an essential feature for a legal culture in which institutional justice operated, by definition, as a device for community governance. Hence, the long tradition of written law in the Castilian legal culture was not contradictory with the possibility, even with the need to adapt the judicial decisions to the circumstances of the case and its context. In this process of adaptation, other normative fields and values regarded as superior to written law, such as the very notion of justice, equity, mercy and the duty to keep the peace and prevent damage, operated to leave local justices a wide range of “discretionary” power. 

In the transition from the colonial order to the formation of new states, a new rhetoric based on the European liberal discourse was adopted, introducing in this context the formulation of the legality principle for criminal matters. However, in the case of colonial territories to form the new Argentinean State, the weight of the colonial legacy in institutional practice, based on that idea of government by judges, made its implementation take a long time. The introduction of the legality principle in the new legal texts passed by the new governments that emerged after the breakdown of the colonial order, ratified thereafter by the new constitutional order, was not immediately followed by the setting up of the necessary devices  to ensure its validity (like a codified legislation and the obligation for judges to express the positive law foundation of their decisions), at least until the first decades of the twentieth century. From this point of view, the difficulties in establishing the legality principle in this particular experience, can serve to reflect on the strong persistence of colonial culture and the limited impact of the emancipation in the institutional practice of the new Argentinean state.

• Tatiana BORISOVA, Saint-Petersburg (Russian Federation), The Legality Principle and its Alternatives in Russia

Situated far from the main centers of European political/economic/cultural development and struggle for leadership, Russia has been perceived there as definitely one of the ‘Others’. From a methodological perspective, research on isolated/remote states, like Russia, can provide new insights in our understanding of the pragmatic dimension in the evolution of criminal law principles and challenges to their universality.
History of Russian criminal law demonstrates remarkable disdain from the principle of legality, on one hand, and domination of analogy, on the other hand. In fact, the legality principle (printsyp zakonnosti) was introduced at the very end of the Imperial period via the 1903 Criminal Code, and remained in force until the 1917 Bolshevik Revolution.
In part, this affirms the link between legality and the separation of powers; the absence of the former in Imperial and Soviet Russia made the latter problematic. The legality principle was restored to the legislative framework only in the 1958 USSR Fundamentals of Criminal Legislation and recently celebrated its first fifty years in modern Russia. At the same time, the instrument of analogy (of law and of the law) was postulated in criminal rules and regulations (e.g. the 1720 Morskoi ustav and RSFSR Criminal Codes of 1922 and of 1926).
Even though political conditions of the autocratic and communist regimes certainly played a significant role in the development of principles of Russian criminal law, it should not be overestimated. In my paper I will attempt to investigate other important factors, like (a) social (under)development; (b) peculiarities of Russian legal professional at academy and civil service; (c) history of ideas and their transfer. My analysis will be focused on the problems necessity of the legality principle, of its subsequent formulation and of the universality of its application (or the existence of cultural relativism excluding its application in a given time or situation). On the theoretical level, the results of this research are expected to help us understand more fully the pragmatism of law: is law the result of general interests (Parsons) or of narrower interests of those holding power in the state (Weber, Foucault) and legal fields (Bourdieu).

• Sébastien DHALLUIN, Control of the criminal judge of the “parliament of Flanders” ’ arbitrium by royal legislation

Can we imagine, long before the ideas transmitted by Beccaria, a concept of legality of crimes and punishments?
At a time when the judge’s arbitrium is feared, royal legislation can be analyzed into two patterns of control of this arbitrium. For some specifically defined criminal behaviors, it is framed by law. For others, it is reduced to nothingness, the magistrate can only appreciate the evidence of the crime and mechanically apply a punishment dictated by law.
Confronting theory with practice, that is to say legislation with criminal case law of the “parliament of Flanders”, will highlight this royal will to control the judge’s arbitrium but also how the judges, through their decisions, have acted against this influence on their powers.

• Markus Dirk DUBBER, University of Toronto (Canada), The (non)history of the legality principle in the United States

M. Dubber will argue that there is no such thing as "a legality principle" in US criminal law, and never has been. Which is somewhat ironic, given that the standard histories of the legality principle (all written by Europeans...) identify the American Revolution as one, if not the, birth of the legality principle in political-legal praxis (well, at least in an actual politicallegal document, with the distinction between the piece of paper and actual praxis often being ignored), as opposed to the scholarly literature (as mentioned in the introductory text of the conference: Beccaria, Montesquieu, Feuerbach).

• António Manuel HESPANHA, Universidade Nova de Lisboa, The pale shade of legality: the resilience of arbitrary criminal iudicia after the Revolutions

It is a common place to stress the installment of the principle of legality as one of the major features of modern constitutionalism. Nevertheless, there are not so many historic al evidences to assess this fact.
Even if one doesn’t go deeper than the level of texts (constitutional, statutory or dogmatic)there isn’t almost any space for a legalistic approach of 19th century European Law.
Several supporting arguments are listed in the following paragraphs.
a. New Constitutions generally let untouched the previous legal corpus. In some of them (like the Spanish Constitution of Cadiz [1812], or the Portuguese Constitution of 1822), the very preamble of the Fundamental Law relates the political crisis of Ancien Regime with the oblivion of the old law(s) of the realm; which, in the case of Sapin, included expressly even the Visigothic Code, and, in the case of Portugal, were the mixed set of traditional and enlightened law defined by the Lei da Boa Razão (1769).
b. Therefore, judges had to obey the traditional body of law, along with the “constitutional”. However, in this legal melting pot, the old law usually prevailed, basically because this was the habitus of lawyers, whose legal education last for decades molded by the university reforms of the late 18th century.
c. Even the new constitutional law didn’t escape from this overwhelming weight either of the legal tradition or of the new doctrinaires dogmata of the political “liberalism”; quite often, jurists declare some principle of the written constitution as unconstitutional, because incompatible with the legs of the Ancien Regime’s dogmatics or with the guiding principles of the new ideological and political situation. Recent studies on the Cadiz’ Constitution (Marta Lorente, Carlos Garriga) render manifest the heavy servitude of the new constitutionalism to the old habitus and institutional dispositives. My own work on the Portuguese constitutionalism also tried to unveil the hidden doctrinal constitution behind the formal one.
d. Facts described under b. and c. were an obstacle to the fully installment of a real cassation system, aimed to protect the parliamentary law against both traditional law and the pervasive inherited idea of the judges were entitled to tune the solution beyond the formal prescriptions of law. And actually, an effective mechanism of controlling judiciary seemingly lacked almost till the late 19th century, when magistrates were, at least in continental Europe, assimilated to civil servants.
e. The Iberian situation was, furthermore, aggravated by the delay of codification. Only after the mid of the 19th century, the so promised Codes were eventually available (in Brazil, only in 1917 …).
f. A study on the citations of academic literature gives an impressive portrait of the role played by the law till the codification. In Portugal, (and Brazil) by the mid 19th century mostof the rationes decidendi were, in fact, the old doctrine of the 17th century (the so called “praxística”, the usus modernus pandectarum, the Prussian
and French Codes (actually more the first than the second), Roman law (remade by the European Romanist tradition), doctrinal texts (from jurist to exemplar classical or religious literature).
g. The so-called absolutism of parliamentary law is a trendy but most improbable dictum of a contemporary legal culture strongly attired by the American (Dworkin’s) mood of enlarging judicial discretion, under the guidelines of a “counter-majoritarian” law.
h. Criminal does not seem to be an exception to this situation, unless as long as the principle of legality in penal law was a strong constituent part of the liberal idearium. However, this fact was counterbalanced by the introduction of lay judges (namely, in the trail by jury) and also by the elitarian nature of formal penal law, which didn’t apply but to a thin layer of population and cases, the rest being decided under the empire of often fully illegal and even brutal police measures.

• Marju LUTS-SOOTAK (in collaboration with Marin SEDMAN), University of Tartu (Estonia), Legislation and the Legality Principle in the Penal Law of the Baltic Provinces of the Russian Empire

In the beginning of the 18th century the Baltic Provinces Estland and Livland were transferred from the Swedish empire to the Russian empire due to the Great Northern War, however as a result of the surrender contract they were able to sustain their own laws and constitution.
Under similar conditions they were transferred to the Swedish empire during the 16th century Livonian War and 17th century Polish-Swedish War. Thus, the belonging of these regions to the Holy Roman Empire until 1561 proved to be important even until the 19th century – the Constitutio Criminalis Carolina from 1532 was fromally valid in Estland and Livland until the 1st of May 1846. According to previous studies such draconic punishments from the CCC as being pulled into four pieces or the putting on a wheel were never implemented in the Baltic regions. Heikki Pihlajamäki has recently studied the criminal law practice from the Swedish period in Livland. It has not been researched how the Baltic courts during the 18th century and the beginning of the 19th century implemented the CCC, also the police and criminal law accrued during the Swedish and Russian period. In any event „German General Penal Law“ was a lecture course, that was taught from the beginning in the Landesuniversität of the Baltic provinces – the university in Tartu (germ. Dorpat) that was re-opened in 1802 and was the only German language university in the Russian empire until russification in 1892.
On the 1st of May 1846 the Old Penal Code (new at that time) of the Russian Empire from 1845 came into effect in the Baltic provinces. Precisely because the official court and administation language in the Baltic provinces was German, the Code was translated into German and published in 1846 as an official issue, the Gesetzbuch der Kriminal- und Korrektionsstrafen. By example of the French Code Penal from 1809 the Russian Code comprised of criminal offences and misdemeanors. The more recent estimates on the Old Penal Code from 1845 are unambiguously critical: archaic in contact, casuistic in form, unclear, without a system etc. At a provincial level the reaction in 1846 was far from negative.
One of the most prominent local lawyers and jurists, C. J. A. Paucker, welcomed the new Code flatteringly and stressed the consistent implementation of the legality principle through this Code.
In any case, we have no research about if and what kind of changes took place in the court practice concerning criminal law in the Baltic region after the introduction of the Code in 1846. The lectures for general German material penal law did not disappear from the lecture plans of the University, although alongside Russian criminal law was also lectured – now in compliance with the Code from 1845. However, the criminal law practice in the Baltic provinces had to differ to some extent from the practice of the Russian inland provinces:
Alongside the Code from 1845 a corresponding act for procedural law was introduces in the inland provinces, in the Baltic region however, the Geman general criminal procedure with any local modifications remained in force, although it was also supposed to be replaced by a local procedural law code. During the 1860s the draft for criminal procedural law for the Baltic provinces was developed, but the Russian central government did not approve it – there were quite new reform ideas, which among other things aspired to abolish the special rights of the autonomous provinces of the peripheral areas of the empire and the unification of the law in the whole of the empire.
One of the major reforms in the legal history of Russia in the 19th century was certainly the judicial reform of 1864, which went far beyond from the strict sense of restructuring the court system, including attending to material criminal law. Namely, with the reform of 1864 peace courts were established as first instance courts and an individual Penal Code for Peace Courts was introduced for them. On the one hand, the regulation was supposed to be simpler and more comprehensive – regarding the non-lawyer members of the peace courts. On the other hand the establishment of the new code was disputable from the viewpoint of legal certainty and the legality principle – the new code did not revoke or replace the relevant provisions of the Old Penal Code, but came into force alongside the old code. The judicial reform was however not implemented in the Baltic provinces in 1864 and the problem of different laws being valid side to side came topical later and once again with some local peculiarities.
In 1888 and 1889 the police and judicial reform was carried through in the Baltic provinces, during which the judicial system that was run and pieced out by the local knighthoods was abolished and replaced with a state one. This reform is generally considered to be an expansion of the Russian reform from 1864. Despite the aim to unify the law, many important exceptions were made from the general regulations of court system, also in procedural and legal regulation, that it would be more appropriate to talk about the Baltic legal reform – not
on the initiative of the provinces themselves, but on the central government. From the perspective of material penal law the reform of 1889 meant that the problems of parallel existence of two codes – the Old Penal Code from 1845 and the Penal Code for Peace Courts from 1864 – reached the Baltic region. In addition, the presevation of the Parish Courts as first instance courts for peasants cases and their incorporation to the public court system brought along the introduction of a new code: the Penal Code for the Parish Courts from
1889. Although it has been recognized as a source of material criminal law in recent Estonian legal historical research (Toomas Anepaio), it was a codification that only dealt with misdemeanors. However as mentioned before, the problem of plurality of criminal law had reached the Baltic region. The welcommed idea of one valid criminal law act from the time of about 50 years earlier had been thrown overboard paradoxically by the Russian central government through modernization and unification. Unfortunately, until this very day, there are no empirical studies about how the Baltic courts functioned in this kind of plurality of codes.
The Russian empire has never withheld paradoxes an surprises. Apparently, the parallel existence of two penal codes was not enough. In 1903 a draft for a penal code was completed, the so-called New Penal Code, which according to contemporary and subsequent evaluations was the most European and in accordance with the rule of law penal code in the history of the Russian empire. Anyway, its establishment was caught in the drafts of the revolution and restauration. Ultimately, it was introduced gradually – with five acts from 1904, 1905, 1906, 1909 and 1911 – and only a few parts of the Code. While the respective parts in the previous codes were not revoked, conserning crimes against religion, the state and public crimes and so on, there were up to three parallel penal codes. There are also no empirical studies concerning the solution of this practical situation in the courts. There are only primary results from a later period concerning the research of court practice – from 1920 and in the already independent Republic of Estonia, were it was decided to reintroduce the penal codes from the Czaristic-Russia period. Leaving aside the details of the problems – the accordance of the practice of penal law in the Republic of Estonia during the period between the two World Wars to the legality principle was problematic in the situation of plurality of laws. There is no reason to believe that the earlier practice from the czaristic period would have dealt with these problems more easily and in accordance with the rule of law.
Despite all of the mentioned and not mentioned research deficits, one this is certain: The Russian absolutist governement could have easily abolished the historical peculiarities of the autonomous regions and put an end to the plurality of criminal laws that was formed in historical tradition strictly with the legality principle. Similarly, the same government could have formed a new plurality of criminal laws in the sphere of influence of different political forces. This was no longer customary law, but a completely different situation, which formally stayed in the frames of the modern legality principle, but overturned the results of the principle with several parallel existing and impinging penal codes.

• Georges MARTYN, University of Ghent (Flanders - Belgium), Text based decisions in criminal matters before the introduction of the legality principle in the county of Flanders

Belgium’s 1831 constitution obliges the judge to motivate his decisions. For the framers of the constitution, inspired by French ideas, and especially by Montesquieu, the judge ought to be ‘the mouth of the law’. He should ‘speak’ the (written) law, certainly not criticise it, enlarge its application or extend its interpretation. Much has been written on the influence of the Exegetic School in the nineteenth century, especially in civil matters. A fortiori, of course, in criminal matters, interpretation had to be very strict. By compelling the judge to motivate his decision and making appeal and cassation control possible, the final aim of the new system was to stress the paramount role of legislation as a source of law, so as to make the judiciary subordinate to the nation’s will, as expressed by parliamentary legislation. Looking back in time across the border of the French Revolution, it became common sense to see an extreme antagonism: Ancient Régime judges were considered to be completely unbound by (written) law, they had some kind of sovereign power of appreciation...
Pointing at various examples of the early modern law in action in the Flemish county, the thesis will be defended that magistrates mostly did think themselves to be bound by the law, written law or ‘legislation’ in particular:
- Or why would city magistrates claim in their city charters the right to judge their fellow citizens according to their ‘own chosen law’, i.e. local ordinances?
- Or why had new magistrates to swear an oath to respect the law?
- Or what was the purpose of installing some kind of public ministry (the proctor and advocate ‘fiscal’) within the prince’s Council of Flanders, having as one of its major mandates the task to control the application of the prince’s ordinances?
- Or why did some (local, regional and central) ordinances (and scholarly texts) explicitly state that some punishments could be given ‘to the discretion’ of the judges, if it wasn’t that for all other misdemeanours there was no discretion at all?
- ...
If Wielant and De Damhouder hold that a judge motivating his decision is to be considered a fool by doing so, it is exactly not because the judge is free to decide, but, quite the other way around, because he is bound by the law. Not to motivate is an old tradition, going back to the days of irrational proof, where God himself decided by unmotivated signs. Although this divine legitimation, by the early modern period, has disappeared (or is at least diminished to a representation of the Last Judgment in the court room or religious references in the formula of oaths and theatrical formalities in the court setting), still the same traditional courts decide, along with the modern courts of the prince. These find their legitimation in the prince’s power (and not yet in a paradigm of rationally established law). This is why motivating the court’s decision is even thought to be dangerous ... as giving a wrong motivation might undermine the court’s authority.

• Aniceto MASFERRER, University of Valencia (Spain), Principle of Legality and Codification in the Western Criminal Law Reform

Nineteenth-century Criminal law reform, principle of legality and legislation (statutes/codification) seem to be inextricably linked concepts in the Western legal tradition. 

While a civil lawyer could come to the conclusion that the codification process constituted a necessary consequence of the principle of legality, a common lawyer may hardly think this way since the rule of law can be also regarded by keeping the existing common law offences and defenses and by undertaking legal reform through statutes (instead of codes). Reality is though much more complex than it seems. That codification was envisaged as an expression of the principle of legality does mean that codes neither always regard that principle, nor are the only legal tool to respect legality. This article aims to deal with the relationship between the principle of legality and the codification in the Western criminal law reform, exploring the role of codification in the criminal law reform of both civil law and common law traditions.

• Matthew C. MIROW, Florida International University Miami (Florida, United States), The Legality Principle and the Constitution of Cádiz

The Spanish Constitution of 1812 or the Constitution of Cádiz has a well-established place in the history of political thought and constitutional law. The Constitution heralded liberal constitutionalism in Europe and the Americas. Indeed, many early independent nations looked to its provisions to draft their first constitutions. The document is about forty pages in length and provides for sovereignty in the nation, rather than in the king. Although maintaining the Catholic faith as state religion, the Constitution espouses liberal ideas and institutions including representative electoral bodies at various levels of government, restrictions on the power of the king, rights for the criminally accused, freedom of contract, and individual property rights. It abolished seigniorial structures, Indian tribute, the Inquisition, forced Indian labor in America and personal services in Spain. Thus, the Constitution of Cádiz has been properly linked to the Age of Democratic Revolutions that flourished in Europe and the Americas.
The reform of criminal law was an important aspect of the Constitution and one that was commented on and explained at length. Although not containing a list of enumerated rights, the Constitution provides for some individual rights, including rights of the criminally accused, at various places in its text. Fearful of unrestrained royal authority to imprison individuals, the Constitution prohibits the king from depriving individuals of their liberty or imposing punishment. It criminalizes actions of executive or judicial officials carrying out such royal orders. When, on account of the security of the state, officials detain an individual on the king’s order, the accused is afforded presentment before a judge within 48 hours. The Constitution places similar prohibitions on the king’s power to seize property. (Art. 172). In addition to imposing substantial limitations on the king related to accusing and punishing criminal suspects, the Constitution also contains a relatively detailed description of the power of the courts and their duties in criminal matters. Thus, only courts may try criminal causes; the function of courts is exclusively judicial. (Arts. 242-245). Judges are personally liable for failing to observe the law. (Art. 254). Prisoners have the right to know the crime for which they are charged and to be presented to a judge. (Arts. 287, 290). Punishment may only follow after an information of the facts, a violation of law, and judicial order. (Art. 287).
Forfeitures of good are permitted only for crimes carrying a financial punishment. (Art. 294).
The Constitution prohibits torture and confiscation. (Art. 303, 304). Searches must be conducted under law and only for the good order and security of the state. (Art. 306). 

Furthermore, the Constitution contemplates one criminal code of universal application throughout the nation. (Art. 258). Thus, the Constitution of Cádiz expresses the Legality Principle and ancillary aspects in several important provisions.
This study analyses the origin of these and related provisions in the Constitution. It examines the debates of deputies in the sessions of the Cortes, explanatory works regarding the Constitution such as the Discurso Preliminar, and the writings of deputies to reconstruct the debate over the place of these provisions in the Constitution and the nation. Such provisions not only were the product of newer, liberal thought but also were grounded in and justified by the established practice of centuries of Spanish law. They accordingly provide a fascinating example of the deputies in Cádiz asserting the legitimacy of constitutional texts through political arguments that employed claims of both innovation and historicity.

• Anthony MUSSON, University of Exeter (Great Britain), Criminal Legislation and the Common Law in Late Medieval England

England provides a unique example in the application of statutes to the criminal law. This is primarily because of the nature of the unwritten law and custom of the realm, known to us as the common law, the law in force in the courts. It is also because of the peculiar way in which statute law developed (from the thirteenth century onwards) and was regarded by contemporaries. Many of the serious crimes (felonies) had no basis in statute law, although some may have been recorded in the so-called law codes of the Anglo-Saxon period. They statutes of Henry II and Edward I were not so much edicts of the king, however, as a consolidation and restatement of key aspects of the existing law. In the ensuing years, particular during the fourteenth century, legislation on criminal matters (some of it substantive, some of it procedural, much of it concerning the administration of justice) emerged from the developing political and judicial body known as parliament. Again, these measures were often not royally inspired initiatives but came from the adoption as legislation of petitions brought by members of parliament and the communities they represented, often the people who acted as sheriffs, or sat as justices of gaol delivery or justice of the peace in the counties, who knew the workings of the criminal law well. 

This paper will use the surviving petitions and records of the common law courts (together with law reports relating to criminal cases) to compare the use of and legal attitude towards statute legislation to help us to understand the workings of the criminal law during the later Middle Ages and the increasing part played by statutes in the regulation of law and order in England prior to the major legislative initiatives in the sixteenth century under the Tudor monarchs.

• Kimmo NUOTIO, Centre of excellence in Foundations of European law and Polity research, University of Helsinki (Finland), The history of the principle of legality as a legal principle 

In my paper I would look at the history of the last two centuries in continental criminal law thinking and legislative practice. There are quite a few points that could be made here.
One is the constitutional edge reminding us of the need to limit the use of authority in order to establish some sort of freedom. This was of course the ideological starting point after the French revolution. During the 19th century the criminal law thinking was informed by such a background premise, first in philophical disguise, but later it developed into a constitutional fundamental rights or human rights norm. Modernised codes recognised it a more black letter status.
The other aspect deals with the doctrines of interpretation, especially the discussions concerning the reasoning by analogy.
And the third one would be the developing stricter eye towards introducing legislation with retroactive effect and also with regards retroactive application of law.
Examples will be taken mainly from German and Finnish law. The history shows a line of development, but this line is not just straight forward, but has interesting curves (e.g. nazi law).

• Heikki PIHLAJAMÄKI, Centre of excellence in Foundations of European law and Polity research, University of Helsinki (Finland), Positivism before Positivism? Statutes and Swedish Early Modern Criminal Law

The Swedish theory of legal sources remained relatively simple all through the early modern period, when compared to the much more polysentric systems of law in other parts of Europe.
Sweden lacked separate bodies of feudal law (because there was hardly any feudalism to speak of), town law (because there were hardly any towns to speak of), canon law (after the Reformation), or clearly identified systems of customary law. This left the field for royal statutory law, which assumed a significant position in the Early Modern Period. I am not trying claim that the position of written law was anything akin to the position that written law acquired in the Gesetzespositivismus of the nineteenth century. The Swedish legal order, as far
as sources went was in principle as porous and open to other normative orders as any European legal order. Morals and theology interacted closely with the legal order, and the Bible was frequently cited as a legal source. However, royal law had much less competitors than it had in the other European regions. The statutory law’s paramount status goes hand in hand with the strong, centralized state that the Swedish crown, using the Lutheran Church as its bracchum spirituale, managed to develop in the sixteenth and seventeenth centuries. The lack of competing legal bodies is, of course, a legal parallel of the Swedish early modern society: a relatively homogenous one with weak nobility and weak towns. In the presentation, the Swedish development is approached in the light of statutory criminal law and the use of statutes in criminal trials.

• Mathias SCHMOECKEL, Universität Bonn (Germany), From the “sentential ex plenitudine potestatis” to “Machtspruch”. Prehistory of an independent judicature

In the tradition of the Ius Commune, a Prince could decide by himself any case with binding authority. During the 18th century, however, the German language differentiates between the “Machtspruch” for the Prince’s final decision and the ordinary “Rechtsspruch”, the decision by a regular tribunal. The “Machtspruch” violates the established order and indicates disorder of the reign. Even before the establishment of the division of powers with an independent judicature there were obviously reasons to leave jurisdiction to the courts alone. These grounds might be found in a new political science and changed objectives of secular judicature. I will start in the jurisprudence of Ius Commune and then will focus on german sources, especially King Frederick II of Prussia.

• Sylvain SOLEIL, Université de Rennes (France), Adoption and Exportation of the Legality Principle by the French System

There are many reasons why the modern principle of legality has been received in Europa, and in the world. I want to insist on the way french legal models have been transplanted at the end of c. 18 and begin of c. 19. After french Revolution, Napoleonic period and circulation of the penal codes (1791, 1795, 1810), nothing will be as before.

• Reception

1789. Criminal question is one of the great matters. Many projects of declarations are circulating in the National assembly; they all include the principle of legality of crimes and sentences. Everyone could be condamned only « en vertu de la loi », in accordance with the law. That’s why DDHC proclames: « Art. 7. Nul homme ne peut être accusé, arrêté ni détenu que dans les cas déterminés par la loi et selon les formes qu’elle a prescrites. […] Art. 8. La loi ne peut établir que des peines strictement et évidemment nécessaires ». Procedure has been completely transformed by the act of 16-22 of July 1791 [sur la police municipale et correctionnelle], and 16-29 of September 1791 [sur la justice criminelle]. From now on, at the end of the trial, judges (judge and the jury in criminal matters) must declare themselves in favour of the culpability, in accordance with the facts and their conviction, and the judge must apply the law to the facts. It must be a perfect judicial syllogism. Judges must become, what deputies call, «des automates», «des organes de la loi», «des instruments de la loi». In each court, “le Procureur du roi” must control the way elected judges would apply penal law. And, at the top of the jurisdictional organisation, “la Cour de cassation” must “break” each decision taken without the Principle of Legality. The Assembly finished its program with the Penal Code (1791), fixing the list of sentences, more clement, more structured, more classified, and – as the deputies thought – more adapted to the goals of the Code: a new society, a new humanity.
The modern principle of Legality must also be analysed, during this time, taking notice of the revolutionary ideology. «La Loi» has got all virtues; she is beautiful as a lady, strong as a lion, fair as the justice, precise and exact like mathematics. She is sovereign: “La Nation, la Loi & le Roi”; “La loi & le Roi”. She is from divine filiation. She can see and catch everything. She has sacred virtues, nearly magic, in some masonic symbolic. I would present some iconographical documents, as «La Loi», by Prudhon or «La Loi», by Darcis:

• Transplant

During years 1789-1793, french Revolutionaries have built political and legal models. They have built something, in their minds, radically new, modern, different (Revolutionary model in contrast with foreign Kingdoms models), something that must be exported abroad (Revolutionary model to reproduce). These Models have to bring all peoples happiness. They have to “regenerate” – one the most useful terms, at this moment – the world. That’s why French Revolution must be exported. «C’est pour nous, said Mirabeau, c’est pour nos neveux, c’est pour le monde entier que vous travaillez. […] vos lois deviendront celles de l’Europe, si elles sont dignes de vous ; car telle est l’influence des grands Etats, et surtout de l’empire français, que chaque progrès dans leur constitution, dans leurs lois, dans leur gouvernement, agrandit la raison et la perfectibilité humaine».
Penal Codes (1791, 1795) and jurisdictional organisation have been transplanted. First, in conquered territories, as in Belgique, Rhénanie, cantons Suisse, Piémont and Savoie. Here, french “commissaries” have to do a sort: some french lois and décrets must be promulgated, and others not. Until Paris decided to transform these territories. They became french departments, in which French law applied as in any other French department.
Secondly, in Républiques soeurs. Here, Paris gave french law as models and foreign lawyers have to prepare codes, on the one hand accepting french principles (as Principle of Legality), on the other hand according to local people. I would take the example of Northern Italy; four italian projects until Napoleon imposed his own code (1810). All these penal code projects accepted the Legality as the foundation of the penal law.
Thirdly and many times after French Revolution, Penal Code and french doctrine have circulated through the world: North and South America, Great Britain (Projects of Hamond and Stephen), Europa, Ottoman Empire, Asia. I would take the Japanese example of the penal code of 1880-1882.

• James WHITMAN, Yale University (United States), Legality: The Common Law Deviation

It is a commonplace that continental standards of legality have never established themselves in the criminal law of the common law world. Several aspects of the Common Law conspire to make its criminal law somewhat suspect under ordinary tests of legality as they are applied on the Continent: These include the comparative vagueness of common law statutes, the inevitable open-endedness of a judge-made tradition, and the uncertainty of common law interpretive traditions. The criminal law of the United States probably offers the most glaring example; but the most pressing problems are found in the criminal law of the United Kingdom, where the Human Rights Act threatens a significant collision with European norms. 

As a result, one might to be tempted to declare that the revolution in favor of legality never took place in the Common Law world at all. As I will suggest in this contribution, though, the legality revolution (if I may call it that) did take place in the Common Law, just as it did on the Continent. It simply took a different form—a characteristically Common Law form, expressing itself in the law of procedure. The ideal of legality came to express itself in the nineteenth century, in the distinctive bifurcation of the common law trial into guilt and sentencing phases. The aim in the law of evidence governing the guilt phase, as it emerged in the nineteenth century, was to judge exclusively whether the defendant had committed a prohibited act, excluding all considerations of character or prior record. Understood properly, this was an effort to introduce a form of legality into the common law, guaranteeing equal application of norms and militating against arbitrariness on the part of either judge of jury.
Nevertheless, I will conclude, this distinctive Common Law experiment has been a marked failure.