Apr 15, 2025
The principle of legality in criminal law: The requirement of legal basis
The principle of legality is a fundamental legal security guarantee in Norwegian criminal law. The principle entails that no one can be convicted without there being a penal code that applies to the act. This article provides an overview of the content and scope of the principle of legality, as well as how various types of penal codes are designed and function.
Constitutionally Guaranteed Legal Security
The Constitution's § 96 states that "No one can be judged without according to Law". The term "judged" here refers to criminal conviction. This represents the principle of legality (the principle of law) in criminal law and is one of the most central legal security guarantees in democratic states.
The principle means that the courts cannot impose punishment for an act that the judge finds reprehensible and deserving of punishment if there is no penal provision that covers the act. This is distinct from civil law, where the court can award compensation or other civil claims even without a direct legal basis.
Historical Background and Justification
The principle "nulla poena sine lege" (no penalty without a law) originates from the Enlightenment period and was a reaction against the conditions that Enlightenment writers found in nearly all European countries. The situation was characterized by scattered, incomplete, and sometimes conflicting penal provisions, which gave judges almost unlimited power to supplement or make exceptions to the law's penalty provisions.
This contradicted the political philosophy of the Enlightenment:
According to the principle of popular sovereignty, it was the people, not the courts, who had the authority to make binding legal rules
According to the principle of separation of powers, a clear distinction between the legislative and executive powers was necessary to avoid arbitrariness and abuse
Today, we are not as wary of giving the courts the authority for independent assessment, but the principle of legality is still considered a fundamental legal security guarantee in democratic states.
The Scope of the Principle of Legality
The Relationship with Customary Law
The Constitution's § 96 prohibits punishment from being imposed based on customary law. Customary law in this context would be court practice, but since punishment is imposed by the courts, a legal basis for applying punishment cannot arise through customary law.
However, public custom can influence the interpretation of penal codes that use evaluation criteria such as "good business practice", "indecent behavior", and similar terms.
In favor of the accused, customary law can be invoked in criminal law as in other areas of law. An example is the Sabbath ordinance of 1735, which had partly fallen out of use through desuetude (non-use) long before it was formally repealed by law.
The Relationship with International Law
Neither international law can form the basis for a criminal conviction in Norwegian courts unless the rules of international law have been provided with a penal sanction by Norwegian law. This principle was also applied in criminal cases against Germans who had committed war crimes during the occupation of Norway.
Various Types of Penal Codes
Classification by Protected Interest
The Penal Code's penal provisions can be divided according to the interest they aim to protect. This is significant, among other things, for the question of who is offended by the criminal act and who can give consent with exclusionary effect on punishment.
The chapter division of the Penal Code often follows this division, with chapter headings such as "Crimes against the Independence and Security of the State", "Crimes against the Public Order and Peace", and "Crimes against Life, Body, and Health".
Classification by Nature of the Description of the Act
Another important classification is by the nature of the description of the act:
Damage Offenses (Result Offenses): The criminal act is described as causing a harmful result. Examples are the provisions on murder (§ 233) and vandalism (§ 291).
Endangerment Offenses: Punishment is imposed for causing danger, even if the harmful result does not occur. A distinction is sometimes made between:
Concrete Endangerment Offenses: Proof is required that a danger has indeed been caused in the specific case
Abstract Endangerment Offenses: The law does not require proof of danger in each specific case, but the penal provision is justified by the fact that the act normally entails danger
Purely Conduct Offenses and Omissions: The law does not define the criminal act by the caused effect but directly describes the prohibited conduct. Examples include false reporting, forgery of money and documents, and sexual relations with minors.
These classifications have relevance in various contexts, for instance, in the discussion of the boundary between attempt and completed crime, or which elements the guilt must encompass.
Who Are the Penal Codes Directed Against?
General and Special Penal Codes
Most penal provisions apply to anyone who performs the act described by the provision: "Whoever does this or that, is punished in such and such a way." However, some penal provisions are directed only at a limited group of persons, for example:
The provisions concerning crimes and misdemeanors in public service
Penal provisions directed against "pawnbrokers", "ship captains", "business operators", "employers", etc.
Extended Circle of Persons under the Penal Code's § 41
The Penal Code's § 41 extends, in certain cases, the circle of persons against whom the penal provision is directed. The provision states: "In cases where the superior cannot be punished for an offense committed by another in his service, liability for punishment can always be asserted against the subordinate, regardless of whether the penal provision by its wording is solely directed against the superior."
The idea is that in many types of law violations, it is sufficient that the law makes the superior responsible. But if the superior cannot be punished, for example, because he did not know about the violation, no one would be responsible if the rule in § 41 did not exist. The provision is most practical in connection with legal violations in business activities.
Legal Entities
Special questions arise when a legal violation has occurred on behalf of a legal entity, such as a company. The Penal Code's § 48a contains a provision directed at the enterprise itself. This corporate liability does not replace but is in addition to the liability for punishment of the personal guilty party.
In the case of legal entities, the law is interpreted such that the company's management is criminally responsible for obligations imposed on the company. How the circle of responsible persons is defined can sometimes be challenging.
Penal Codes and Descriptions of the Act
Completed Crime, Attempts, and Participation
The individual descriptions of the acts in the law are designed with a view to the completed crime, but these are supplemented by general provisions on the punishability of attempts.
For participation, our Penal Code has chosen a different approach than many other countries: It includes participation in the descriptions of the acts in the individual penal provisions to the extent that it is intended to be punishable. The Penal Code Commission has recommended altering this so that a penal provision should also cover those who participate in the act, unless otherwise specified.
Conclusion
The principle of legality in criminal law is a fundamental legal state guarantee that ensures no one can be sentenced to punishment without a legal basis. The principle is enshrined in the Constitution's § 96 and has roots stretching back to the Enlightenment. It entails that courts cannot punish actions they find reprehensible but which are not covered by a penal code.
The penal codes in Norwegian law are designed in various ways and can be classified according to which interest they protect or the nature of the description of the act. While most penal provisions apply to everyone, there are also provisions directed only at specific groups of people. Through special rules such as the Penal Code § 41 and rules on corporate liability, the circle of persons is extended in certain cases.
