A Modern Treatise on the Principle of Legality
in Criminal Law
.
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
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To my wife and daughters.
.
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

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
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
x Preface
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 Crimi nal 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 Crim inal 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

4.1.4 Distinction Between Locally Restricted
and Not Restricted Criminal Nor ms . . . 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 Substant ive 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 Prin ciples of Criminal Law 144
5.3.2 Specific and General Criminal Norms . 145
xii Contents
5.3.3 Analogy 147
5.3.4 Strict and Purposive Interpretations . . . 149
5.3.5 Assisting Legal Meas ures for Revealing the Legal

Fig. 3.8 The applicability of the procedural criminal norm in time
in the second possible time relation between relevant
points in time . . . . . . . 63
Fig. 3.9 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
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

Law Theory
1.1.1 The Basic Structure of Criminal Law Theory
Criminal law is part of the scientific sphere called “law,” or the legal science.
Therefore, criminal law is a scientific sphere. In the past, in the Anglo-American
legal systems, there was a conceptual difficulty in classifying law as a science
because of its development through case-laws, which made use of the praxis of
binding precedents ( stare decisis). This attitude matched the general scientific
development in Anglo-American countries, which was casuistic. By contrast, the
European-Continental legal systems considered law to be a science,
1
and therefore
in Europe it was necessary to study at the university to become a jurist. In the first
university in Europe, the University of Bologna, law was one of the scientific
1
For the development of the law as science in the Middle Ages and afterwards in Europe see
Harold J. Berman and Charles J. Reid Jr., Roman Law in Europe and the Jus Commune: A
Historical Overview with Emphasis on the New Legal Science of the Sixteenth Century,20
SYR-
ACUSE J. INT’L L. & COM.
1 (1994).
G. Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law,
DOI 10.1007/978-3-642-13714-3_1,
#
Springer-Verlag Berlin Heidelberg 2010
1
subjects being studied.
2
The Faculty of Law of Bologna played a crucial role in the
development of law in the Middle Ages (jus commune).
3

2
University of Bologna was established in 1088 AD, and it is considered as the first university in
Europe. For the development of the law as science in the European universities see
HASTINGS
RASHDALL, THE UNIVERSITIES OF EUROPE IN THE MIDDLE AGES
135 (1935).
3
JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN
EUROPE AND LATIN AMERICA 7–14, 27–34 (1969).
4
W. D. Lewis, The Law of England Considered as a Science,10L. REV. & Q. J. BRIT. & FOREIGN
JURISPRUDENCE
23 (1849); George W. Goble, Law as a Science,9IND. L. J. 294 (1934); John D.
Appel, Law as a Social Science in the Undergraduate Curriculum,10
J. LEGAL EDUC. 485 (1958);
John J. Bonsignore, Law as a Hard Science: On the Madness in Method, 2 ALSA F. 49 (1977);
Marcia Speziale, Langdell’s Concept of Law as Science: The Beginning of Anti-Formalism in
American Legal Theory,5
VT. L. REV. 1 (1980); Lynn R. Campbell, Law as a Social Science,9
DALHOUSIE L. J. 404 (1984); David L. Faigman, To Have and Have Not: Assessing the Value of Social
Science to the Law as Science and Policy,38
EMORY L. J. 1005 (1989).
5
George L. Priest, Social Science: Theory and Legal Education: The Law School As University,33
J. LEGAL EDUC. 437 (1983); Mark Warren Bailey, Early Legal Education in the United States:
Natural Law Theory and Law as a Moral Science,48
J. LEGAL EDUC. 311 (1998).
6
STEPHEN W. HAWKING, A BRIEF HISTORY OF TIME 18 (1989).
7

Fundamental Principles
Specific Legal Provisions
Fig. 1.1 The structure of
scientific legal theory
8
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 25–28 (5th ed., 2006); ANTHONY JOHN PATRICK KENNY,
FREEWILL AND RESPONSIBILITY (1978)
; HERBERT L. A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE
PHILOSOPHY OF LAW
ch. 6 (1968).
1.1 The Role of the Principle of Legality in the Criminal Law Theory 3
law theory, the free choice must be well defined. Although free choice may seem to
be related to the modern political philosophy of the eighteenth century, its origins
reach back to the dawn of humanity.
9
When certain regimes rejected the free choice
concept, they were considered to be ille gitimate.
The principle of free choice negates determinism. The basic assumption of free
choice is that free choice is possible. Deterministic concepts, which regard
individual behavior to be dominated by external forces, negate the principle of
free choice.
10
Determinism may be relative. Under certain circumstances, when an
object falls from an individual’s hand, the path of the obje ct may not be under the
individual’s control, but causing the object fall may be.
From the supra-principle derive the fundamental principles. In criminal law
theory there are four fundamental principles:
(1) The principle of legality
(2) The principle of conduct
(3) The principle of culpability

Analysis,
76 GEO. L. J. 2045 (1988); Ian Shrank, Determinism and the Law of Consent – A Reformula-
tion of Individual Accountability for Choices Made without Free Will,
12 SUFFOLK U. L. REV. 796
(1978); Jos Andenaes, Determinism and Criminal Law,47J. CRIM. L. CRIMINOLOGY & POLICE SCI. 406
(1957); Michele Cotton. A Foolish Consistency: Keeping Determinism out of the Criminal Law, 15
B. U. PUB. INT. L. J. 5
(2006).
11
ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 157–248 (5th ed., 2006).
4 1 The Meaning and Structure of the Principle of Legality in Criminal Law
individual is incapable to form culpability (doli incapax), owing to mental disease,
infancy, lack of self-control, uncontrollable intoxication, etc., the possibility of
imposing criminal liability is negated because of subjective reasons related to the
negative aspects.
The rules of formation of the mental appearance of free choice are embodied in
the third fundamental principle of the criminal law theory, the principle of
culpability, the subjective expression of free choice. Because the imposition of
criminal liability requires free choice on the part of the individual, it is necessary
that the free choice be the individual’s own and personal free choice. One individ-
ual is not criminally liable for the free choice of another.
12
Free choice and criminal
liability are embodied in the same legal entity.
The rules of formation of the personal appearance of free choice are embodied in
the fourth fundamental principle of criminal law theory, the principle of personal
liability. The four fundamental principles are the outcome of the supra-principle of
free choice and derive from it.
From the four funda mental principles derive secondary principles. From each
of the four fundamental principles derive four secondary principles. The secondary

means analyzing the criminal norm in abstract terms, irrespective of individual events.
Criminality in concreto is generally the domain of the courts, where the imposition of
criminal liability on an individual in given circumstances is analyzed in specific terms.
The principle of legality relates to the criminal norm and not to the criminal event.
Figure 1.3 describes the basic structure of the principle of legality in criminal law.
According to its basic scientific structure in criminal law, the principle of
legality has four main aspects, expressed by its four secondary principles. The
first secondary principle relates to the sources of the criminal norm, and asks the
question: What are the legitimate sources of the criminal norm. For example, can an
international covenant form a criminal norm applicable to individuals? Can the
constitution? Can judicial decisions?
Supra-principle of Free Choice
Principle
of Personal
Liability
Principle
of Culpability
Principle
of Conduct
Specific
Legal
Provisions
Specific
Legal
Provisions
Specific
Legal
Provisions
Specific
Legal