Legality

This article needs additional citations for

verification. Learn more

Legality can be defined as an act,

agreement, or contract that is consistent
with the law or state of being lawful or
unlawful in a given jurisdiction.

According to the Merriam-Webster

Dictionary, legality is 1 : attachment to or
observance of law. 2 : the quality or state
of being legal [1] Businessdictionary.com,
thelawdictionary.org, and
mylawdictionary.org definition explains
concept of attachment to law as Implied
warranty that an act, agreement, or
contract strictly adheres to the statutes of
a particular jurisdiction. For example, in
insurance contracts it is assumed that all
risks covered under the policy are legal
ventures. The second definition cited by
Businessdictionary.com, the Legal
principle that an accused may not be
prosecuted for an act that is not declared
a crime in that jurisdiction is actually
about the Principle of legality which is
part of the overall concept of legality.[2][3]

Definitions
Vicki Schultz[4] states that we collectively
have a shared knowledge about most
concepts. How we interpret the reality of
our actual understanding of a concept
manifests itself through the different
individual narratives that we tell about
the origins and meanings of a particular
concept. The difference in narratives,
about the same set of facts, is what
divides us. An individual has the ability to
frame, or understand, something very
differently than the next person. Evidence
does not always lead to a clear
attribution of the specific cause or
meaning of an issue – meanings are
derived through narratives. Reality, and
the facts that surround it, are personally
subjective and laden with assumptions
based on clearly stated facts. Anna-
Maria Marshall[5] states, this shift in
framing happens because our
perceptions depend “on new information
and experiences;” this very idea is the
basis of Ewick and Sibley definition of
legality – our everyday experiences
shape our understanding of the law.

Ewik and Silbey define "legality" more

broadly as, those meanings, sources of
authority, and cultural practices that are in
some sense legal although not necessarily
approved or acknowledged by official law.
The concept of legality the opportunity to
consider "how where and with what effect
law is produced in and through
commonplace social interactions....How
do our roles and statuses our
relationships, our obligations, prerogatives
and responsibilities, our identities and our
behavoiurs bear the imprint of law. [6]

In a paper on Normative Phenomena of

Morality, Ethics and Legality, legality is
defined taking the state's role in to
account as, The system of laws and
regulations of right and wrong behavior
that are enforceable by the state (federal,
state, or local governmental body in the
U.S.) through the exercise of its policing
powers and judicial process, with the
threat and use of penalties, including its
monopoly on the right to use physical
violence.[7]

Principle of legality
The principle of legality is the legal ideal
that requires all law to be clear,
ascertainable and non-retrospective. It
requires decision makers to resolve
disputes by applying legal rules that have
been declared beforehand, and not to
alter the legal situation retrospectively by
discretionary departures from
established law.[8] It is closely related to
legal formalism and the rule of law and
can be traced from the writings of
Feuerbach, Dicey and Montesquieu.
The principle has particular relevance in
criminal and administrative law. In
criminal law it can be seen in the general
prohibition on the imposition of criminal
sanctions for acts or omissions that
were not criminal at the time of their
commission or omission. The principle is
also thought to be violated when the
sanctions for a particular crime are
increased with retrospective effect.

In administrative law it can be seen in the

desire for state officials to be bound by
and apply the law rather than acting upon
whim. As such advocates of the principle
are normally against discretionary
powers.
The principle can be varyingly expressed
in Latin phrases such as Nullum crimen,
nulla poena sine praevia lege poenali (No
crime can be committed, nor punishment
imposed without a pre-existing penal
law), nulla poena sine lege (no penalty
without law) and nullum crimen sine lege
(no crime without law). A law that
violates the principle by retroactively
making actions illegal that were
committed before the enactment of the
law is called an ex post facto law.

Other related concepts

Rule of law provides for availability of
rules, laws and legal mechanism to
implement them. Principle of legality
checks for availability and quality of the
laws. Legality checks for if certain
behaviour is according to law or not.
concept of Legitimacy of law looks for
fairness or acceptability of fairness of
process of implementation of law.

quality of being legal and observance to

the law may pertain to lawfullness, i.e.
being consistent to the law or it may get
discussed in principle of legality or may
be discussed as legal legitimacy.

Legality of purpose
In contract law, legality of purpose is
required of every enforceable contract.
One can not validate or enforce a
contract to do activity with unlawful
purpose.[9]

Constitutional legality

The principle of legality can be affected

in different ways by different
constitutional models. In the United
States, laws may not violate the stated
provisions of the United States
Constitution which includes a prohibition
on retrospective laws. In Britain under
the doctrine of Parliamentary
sovereignty, the legislature can (in
theory) pass such retrospective laws as
it sees fit, though article 7 of the
European convention on human rights,
which has legal force in Britain, forbids
conviction for a crime which was not
illegal at the time it was committed.
Article 7 has already had an effect in a
number of cases in the British courts.

In contrast many written constitutions

prohibit the creation of retroactive
(normally criminal) laws. However the
possibility of statutes being struck down
creates its own problems. It is clearly
more difficult to ascertain what is a valid
statute when any number of statutes
may have constitutional question marks
hanging over them. When a statute is
declared unconstitutional, the actions of
public authorities and private individuals
which were legal under the invalidated
statute, are retrospectively tainted with
illegality. Such a result could not occur
under parliamentary sovereignty (or at
least not before Factortame) as a statute
was law and its validity could not be
questioned in any court.

International law
Legality, in its criminal aspect, is a
principle of international human rights
law, and is incorporated into the
Universal Declaration of Human Rights,
the International Covenant on Civil and
Political Rights and the European
Convention on Human Rights. However
the imposition of penalties for offences
illegal under international law or criminal
according to "the general principles of
law recognized by civilized nations" are
normally excluded from its ambit. As
such the trial and punishment for
genocide, war crimes and crimes against
humanity does not breach international
law.

There is some debate about whether this

is really a true exception or not. Some
people would argue that it is a derogation
or – perhaps somewhat more harshly –
an infringement of the principle of
legality. While others would argue that
crimes such as genocide are contrary to
natural law and as such are always illegal
and always have been. Thus imposing
punishment for them is always
legitimate. The exception and the natural
law justification for it can be seen as an
attempt to justify the Nuremberg trials
and the trial of Adolf Eichmann, both of
which were criticized for applying
retrospective criminal sanctions.

The territorial principle, generally

confining national jurisdiction to a
nation’s borders, has been expanded to
accommodate extraterritorial, national
interest.

In criminal law, the principle of legality

assures the primacy of law in all criminal
proceedings.

Bibliography
Kelsen, Hans. General Theory of Law
and State (Cambridge,
Massachusetts : Harvard University
Press, c1945) (Cambridge,
Massachusetts : Harvard University
Press, 1949) (New York : Russell &
Russell, 1961) (New Brunswick, New
Jersey : Transaction Publishers,
c2006).
Kelsen, Hans. Principles of
international law (New York : Rinehart,
1952) (New York : Holt, Rinehart &
Winston, 1966) (Clark, New Jersey :
Lawbook Exchange, 2003).
Slaughter, Anne-Marie. A new world
order (Princeton : Princeton University
Press, c2004).
Nye, Joseph S. Soft power (New York :
Public Affairs, c2004).
de Sousa Santos, Boaventura and
César A. Rodríguez-Garavito, eds. Law
and globalization from below : towards
a cosmopolitan legality (Cambridge,
UK : Cambridge University Press, 2005)
Marsh, James L. Unjust legality : a
critique of Habermas's philosophy of
law (Lanham : Rowman & Littlefield
Publishers, c2001).
Sarat, Austin, et al., eds. The limits of
law (Stanford : Stanford University
Press, 2005).
Milano, Enrico. Unlawful territorial
situations in international law :
reconciling effectiveness, legality and
legitimacy (Leiden ; Boston : M. Nijhoff,
c2006).
Ackerman, Bruce, ed. Bush v. Gore : the
question of legitimacy (New Haven :
Yale University Press, c2002).
 Gabriel Hallevy A Modern Treatise on
the Principle of Legality in Criminal Law
(Heidelberg : Springer-Heidelberg,
c2010).

See also
Analytical jurisprudence
legal positivism
Sources of law
Nullum crimen, nulla poena sine
praevia lege poenali
Socialist Legality
Agent of Record

External links
Look up legality in Wiktionary, the
free dictionary.

Legality, generally:
Cornell LII "Jurisprudence"
Cornell LII "International law"
YaleLS Avalon Project,
"Documents in Law, History &
Diplomacy" (many original
documents, fulltexts online,
defining The State and Legality)
Legality in actual operation in
International Law, examples:
International Court of Justice
International Criminal Court
 International Criminal Tribunal for
the Former Yugoslavia
International Criminal Tribunal for
Rwanda
International Tribunal for the Law
of the Sea
European Court of Human Rights
Decisions of various international
judicial and quasi-judicial bodies,
including PCIJ, CACJ, CAT, CEDAW
etc.
Legality in actual operation in national
Constitutional Law, examples:
US Supreme Court
Conseil Constitutionnel, France
Law Lords, UK
 Supreme Court, UK (New!)

References
1. "Definition of LEGALITY" . merriam-
webster.com.
2. "What is legality? definition and
meaning" . businessdictionary.com.
3. "What is LEGALITY? definition of
LEGALITY (Black's Law Dictionary)" .
thelawdictionary.org.
4. Schultz, Vicki (1 January 1990).
"Telling Stories about Women and
Work: Judicial Interpretations of Sex
Segregation in the Workplace in Title
VII Cases Raising the Lack of Interest
Argument". Harvard Law Review. 103
(8): 1749–1843.
 doi:10.2307/1341317 .
JSTOR 1341317 .
5. Marshall, Anna-Maria (1 July 2003).
"Injustice Frames, Legality, and the
Everyday Construction of Sexual
Harassment". Law & Social Inquiry.
28 (3): 659–689. doi:10.1111/j.1747-
4469.2003.tb00211.x .
6. Berman, Paul Schiff (27 February
2012). Global Legal Pluralism: A
Jurisprudence of Law Beyond
Borders . Cambridge University
Press. ISBN 978-0-521-76982-2 – via
Google Books.
7. Erhard, Werner; Jensen, Michael C.;
Zaffron, Steve (2009). "Integrity: A
 Positive Model that Incorporates the
Normative Phenomena of Morality,
Ethics and Legality". SSRN Electronic
Journal. doi:10.2139/ssrn.920625 .
8. Robinson, Paul H. (2005). "Fair
Notice and Fair Adjudication: two
kinds of legality" .
9. Litvin, Michael (15 September 2009).
"Legality of purpose – contracts" .
cornell.edu.

Retrieved from
"https://en.wikipedia.org/w/index.php?
title=Legality&oldid=894696168"

Last edited 4 months ago by TomS…

Content is available under CC BY-SA 3.0 unless
otherwise noted.