Gellér Balázs: Legality on Trial. A Theoretical Analysis of the Legality of Substantive Criminal Norms
This work tries to fi nd the principles which might govern cases where justice collides with legality as traditionally understood, and offer a new understanding of the legality principle applicable to substantive criminal law. The preconception on which this study rests is that there is a common core to every legal system which - if rightly defi ned - can assist in the understanding of a legal institution. The idea that such a precondition exists receives support through every case and authority examined, and it is hoped that it will eventually be, if not proven in this work, at least powerfully boosted as an involuntary result of the discussion herein. This study is not intended to be a work employing the comparative method, and therefore when speaking of a particular legal problem not every aspect of it is examined in every jurisdiction. It is a theoretical undertaking and arguments and examples are selected on the basis of their relevance to the argument as a whole. It is acknowledged that this may raise the suspicion of arbitrariness as far as the presentation of supporting authorities is concerned. But it is also hoped that the inclusion of some major works into the cited sources from the legal systems under discussion will erase any such doubts. Finally, since legality has a Janus face, being both a principle of constitutional law and simultaneously defi ning the constitutionality of criminal law, when a segment of the constitutionality of substantive criminal law is examined by attacking the traditional understanding of legality, both these aspects of legality must be utilised. In this respect criminal laws violating legality can be unconstitutional even if no written constitution exists in a jurisdiction, or the test of constitutionality is very different in the legal systems which are under observation. It is therefore possible, for example, to apply principles of constitutional interpretation developed in the jurisprudence of the Supreme Court of the United States to problems arising in English or Hungarian criminal law.
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