Legality: Difference between revisions

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{{Short description|Consistency with the law of a jurisdiction}}
{{Short description|Consistency with the law of a jurisdiction}}
{{Other uses}}
{{Other uses}}
{{multiple|
'''Legality''' is the state of being consistent with the [[law]], the construct of legal [[Power (social and political)|power]], or lawfulness in a given [[jurisdiction]].<ref>{{cite web |date=14 June 2023 |title=Definition of Legality |url=http://www.merriam-webster.com/dictionary/legality |work=merriam-webster.com}}</ref>
{{More citations needed|article|date=August 2007}}
{{Rewrite lead|reason=excessive use of dictionary definitions.|date=January 2023}}
}}
'''Legality''', in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given [[jurisdiction]], and the construct of power. ''[[Merriam-Webster]]'' defines legality as "1: attachment to or observance of law. 2: the quality or state of being legal."<ref>{{cite web|url=http://www.merriam-webster.com/dictionary/legality|title=Definition of Legality|work=merriam-webster.com|date=14 June 2023 }}</ref> BusinessDictionary.com, ''The Law Dictionary'', and ''My Law Dictionary'' 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."


== Definitions ==
== Definition ==
Vicki Schultz<ref>{{cite journal|jstor=1341317|title=Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument|first=Vicki|last=Schultz|date=1 January 1990|journal=Harvard Law Review|volume=103|issue=8|pages=1749–1843|doi=10.2307/1341317|url=https://digitalcommons.law.yale.edu/fss_papers/4978}}</ref> 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<ref>{{cite journal|title=Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment|journal=Law & Social Inquiry|first=Anna-Maria|last=Marshall|date=1 July 2003|volume=28|issue=3|pages=659–689|doi=10.1111/j.1747-4469.2003.tb00211.x|s2cid=145186120}}</ref> 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 [[Joel H. Silbey|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.&nbsp;... How do our roles and statuses our relationships, our obligations, prerogatives and responsibilities, our identities and our behavoiurs bear the imprint of law."<ref>{{cite book|url=https://books.google.com/books?id=K0Vgm5KYYjsC|title=Global Legal Pluralism: A Jurisprudence of Law Beyond Borders|first=Paul Schiff|last=Berman|date=27 February 2012|publisher=Cambridge University Press|via=Google Books|isbn=978-0-521-76982-2}}</ref>
=== Feminist jurisprudence ===
Feminist theories of law define legality a distinct but related concept to the law, consisting of [[Social constructionism|socially-constructed]] meanings and practices that depend on [[Social stratification|social forces]], such as race, gender, and class.<ref>{{cite journal |last=Schultz |first=Vicki |date=1 January 1990 |title=Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument |url=https://digitalcommons.law.yale.edu/fss_papers/4978 |journal=Harvard Law Review |volume=103 |issue=8 |pages=1749–1843 |doi=10.2307/1341317 |jstor=1341317}}</ref> Ewick and Sibley define "legality" as "those meanings, sources of authority, and cultural practices that are commonly recognized as legal, although not necessarily approved nor acknowledged by law."<ref>{{cite book |last=Berman |first=Paul Schiff |url=https://books.google.com/books?id=K0Vgm5KYYjsC |title=Global Legal Pluralism: A Jurisprudence of Law Beyond Borders |date=27 February 2012 |publisher=Cambridge University Press |isbn=978-0-521-76982-2 |via=Google Books}}</ref><ref>{{cite journal |last=Marshall |first=Anna-Maria |date=1 July 2003 |title=Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment |journal=Law & Social Inquiry |volume=28 |issue=3 |pages=659–689 |doi=10.1111/j.1747-4469.2003.tb00211.x |s2cid=145186120}}</ref>


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."<ref>{{cite journal|doi=10.2139/ssrn.920625|title=Integrity: A Positive Model that Incorporates the Normative Phenomena of Morality, Ethics and Legality|year=2009|last1=Erhard|first1=Werner|last2=Jensen|first2=Michael C.|last3=Zaffron|first3=Steve|s2cid=142746354}}</ref>
=== Legal doctrine ===
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.<ref>{{cite web |last=Litvin |first=Michael |date=15 September 2009 |title=Legality of purpose – contracts |url=https://www.law.cornell.edu/wex/example/%5Bfield_short_title-raw%5D_26 |work=cornell.edu}}</ref>


== Other related concepts ==
== Principle of legality ==
[[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.
{{unsourced|section|date=June 2025}}
 
The quality of being legal and observance to the law may pertain to lawfulness, i.e. being consistent to the law or it may get discussed in principle of legality or may be discussed as legal [[legitimacy (political)|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.<ref>{{cite web|url=https://www.law.cornell.edu/wex/example/%5Bfield_short_title-raw%5D_26|title=Legality of purpose – contracts|first=Michael|last=Litvin|date=15 September 2009|work=cornell.edu}}</ref>
 
=== 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 the [[United Kingdom]] 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 [[Ex post facto law|retroactive]] (normally criminal) laws.{{citation needed|date=December 2012}} 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.
 
=== Principle of legality ===
{{Main|Principle of legality in criminal law}}
{{Main|Principle of legality in criminal law}}


The principle that no one be convicted of a crime without a written legal text which clearly describes the crime is widely accepted and codified in modern democratic states as a basic requirement of the rule of law. It is known in Latin as {{lang|la|[[nulla poena sine lege]]}}.
The principle that no one be convicted of a crime without a written legal text which clearly describes the crime is widely accepted and codified in modern democratic states as a basic requirement of the rule of law. It is known in Latin as {{lang|la|[[nulla poena sine lege]]}}.


==International law==
''Nulla poena sine lege'' 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]]. Exceptionally under [[international law]], criminal offences may include violations of "the general principles of law recognized by civilized nations", such as [[genocide]], [[war crimes]] and [[crimes against humanity]], even if such offences are not codified or affirmed in judicial precedent. Following the [[Nuremberg trials]], scholars of [[jurisprudence]] have debated whether such exceptions are valid for apparently applying retrospective criminal sanctions in the absence of written law. [[Natural law|Natural-law]] theorists argue that crimes such as genocide are, and have always been, illegal under natural law.
{{unsourced|section|date=November 2022}}
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.
== By jurisdiction ==
{{unsourced|section|date=June 2025}}


The [[territorial principle]], generally confining national jurisdiction to a nation’s borders, has been expanded to accommodate extraterritorial, [[national interest]].
=== United Kingdom ===
In the [[United Kingdom]] 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.


In [[criminal law]], the principle of legality assures the primacy of law in all criminal proceedings.
=== United States ===
In the [[United States]], laws may not violate the stated provisions of the [[United States Constitution]], which includes a prohibition on retrospective laws.


== Bibliography ==
== Bibliography ==
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* [[Principle of legality in French criminal law]]
* [[Principle of legality in French criminal law]]
* [[Sources of law]]
* [[Sources of law]]
* [[Nullum crimen, nulla poena sine praevia lege poenali]]
* [[Socialist Legality]]
* [[Agent of Record]]


== References ==
== References ==
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== External links ==
== External links ==
{{Wiktionary}}
{{Wiktionary}}
* Legality, generally:
* [https://www.law.cornell.edu/wex/index.php/Jurisprudence Cornell LII "Jurisprudence"]
** [https://www.law.cornell.edu/wex/index.php/Jurisprudence Cornell LII "Jurisprudence"]
* [https://www.law.cornell.edu/wex/index.php/International_law Cornell LII "International law"]
** [https://www.law.cornell.edu/wex/index.php/International_law Cornell LII "International law"]
* [https://web.archive.org/web/19970529141411/http://www.yale.edu/lawweb/avalon/avalon.htm YaleLS Avalon Project, "Documents in Law, History & Diplomacy"]  
** [https://web.archive.org/web/19970529141411/http://www.yale.edu/lawweb/avalon/avalon.htm 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:
** [http://www.icj-cij.org/ International Court of Justice]
** [https://web.archive.org/web/20040529013344/http://www.icc-cpi.int/home.html International Criminal Court]
** [https://www.un.org/icty/index.html International Criminal Tribunal for the Former Yugoslavia]
** [http://www.unictr.org/ International Criminal Tribunal for Rwanda]
** [http://www.itlos.org/ International Tribunal for the Law of the Sea]
** [http://www.echr.coe.int/echr European Court of Human Rights]
** [http://www.worldcourts.com/ Decisions of various international judicial and quasi-judicial bodies, including PCIJ, CACJ, CAT, CEDAW etc.]
* Legality in actual operation in national Constitutional Law, examples:
** [https://web.archive.org/web/20060923004417/http://www.supremecourtus.gov/index.html US Supreme Court]
** [http://www.conseil-constitutionnel.fr/ Conseil Constitutionnel, France]
** [https://web.archive.org/web/20060918213229/http://www.parliament.uk/documents/upload/HLLAppellate.pdf Law Lords, UK]
** [[Supreme Court of the United Kingdom|Supreme Court, UK (New!)]]


{{Law}}
{{Law}}
{{Authority control}}
{{Authority control}}


[[Category:Legal doctrines and principles]]
[[Category:Legal doctrines and principles]]
{{Law-term-stub}}

Latest revision as of 21:36, 21 June 2025

Template:Short description Script error: No such module "other uses". Legality is the state of being consistent with the law, the construct of legal power, or lawfulness in a given jurisdiction.[1]

Definition

Feminist jurisprudence

Feminist theories of law define legality a distinct but related concept to the law, consisting of socially-constructed meanings and practices that depend on social forces, such as race, gender, and class.[2] Ewick and Sibley define "legality" as "those meanings, sources of authority, and cultural practices that are commonly recognized as legal, although not necessarily approved nor acknowledged by law."[3][4]

Legal doctrine

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.[5]

Principle of legality

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The principle that no one be convicted of a crime without a written legal text which clearly describes the crime is widely accepted and codified in modern democratic states as a basic requirement of the rule of law. It is known in Latin as Script error: No such module "Lang"..

Nulla poena sine lege 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. Exceptionally under international law, criminal offences may include violations of "the general principles of law recognized by civilized nations", such as genocide, war crimes and crimes against humanity, even if such offences are not codified or affirmed in judicial precedent. Following the Nuremberg trials, scholars of jurisprudence have debated whether such exceptions are valid for apparently applying retrospective criminal sanctions in the absence of written law. Natural-law theorists argue that crimes such as genocide are, and have always been, illegal under natural law.

By jurisdiction

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United Kingdom

In the United Kingdom 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.

United States

In the United States, laws may not violate the stated provisions of the United States Constitution, which includes a prohibition on retrospective laws.

Bibliography

  • Kelsen, Hans. General Theory of Law and State (Cambridge, Massachusetts: Harvard University Press, c. 1945) (Cambridge, Massachusetts: Harvard University Press, 1949) (New York: Russell & Russell, 1961) (New Brunswick, New Jersey: Transaction Publishers, c. 2006).
  • 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, c. 2004).
  • Nye, Joseph S. Soft power (New York : Public Affairs, c2004).
  • de Sousa Santos, Boaventura, and Rodríguez-Garavito, César A., 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, c. 2001).
  • 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, c. 2006).
  • Ackerman, Bruce, ed. Bush v. Gore: the question of legitimacy (New Haven: Yale University Press, c. 2002).
  • Gabriel Hallevy A Modern Treatise on the Principle of Legality in Criminal Law (Heidelberg: Springer-Heidelberg, c. 2010).

See also

References

Template:Reflist

External links

Template:Sister project

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Template:Law-term-stub

  1. ↑ Script error: No such module "citation/CS1".
  2. ↑ Script error: No such module "Citation/CS1".
  3. ↑ Script error: No such module "citation/CS1".
  4. ↑ Script error: No such module "Citation/CS1".
  5. ↑ Script error: No such module "citation/CS1".
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