Talk:Legality

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[edit] Proposed Merge

The articles Ex_post_facto_law, Nulla_poena_sine_lege and Nullum_crimen,_nulla_poena_sine_praevia_lege_poenali essentially cover the same area. It is proposed to merge them into a new article on the principle of legality. They are all about this topic but don't quite yet know it. Caveat lector 19:42, 28 April 2006 (UTC)

• No one seems to be interested in this one... I've decided to remove Ex_post_facto_law from the proposed merge, as the topic is slightly different and the article isn't very good anyway... Caveat lector 18:12, 16 May 2006 (UTC)
• Another similar page to merge Lex retro non agit. Caveat lector 19:07, 17 May 2006 (UTC)

I hate to add an unsigned comment -- notably because I barely know what I am doing -- but I would be against the merge of Nulla_poena_sine_lege into Legality. I came here via United States v. Hudson and Goodwin, and I found the article very substantial when viewed through the paradigm of a Supreme Court decision that defined that particular concept. I probably will never know what comes of this, but, for this reason, I hope that the merge does not take. (Not unsigned -- got an account to show how serious I am.) --Dramatic fool 02:02, 1 July 2006 (UTC)

In fairness I didn't suggest we delete any of the articles. The two articles to be merged are merely different variations of the same latin phrase. Caveat lector 21:16, 1 July 2006 (UTC)

I am in favor of the proposed merge, if for nothing else than to give historical depth to the idea of legality. --Tkessler45 10:39, 17 September 2006 (UTC)

I disagree with the proposed merge. From a purely objective viewpoint it is more useful to link together smaller concepts than to try to hang them all under the one umbrella. I am also not convinced that it is appropriate to have this under "legality". Nullum crimen sine lege is a principle resident in many legal systems, but not in all. To define it as a prerequisite for legality or to even allow for that interpretation to arise will in fact taint a presentation of the facts with a Western jurisprudential bias. --Anonymous user, United Kingdom, 29th October 2006

[edit] Practical vs Conceptual Law

This may be a slightly tangential discussion to the definition of legality, but there is something to be said for the difference between what amounts to both practical legality and conceptual legality. This distinction is very important because despite claims of legality/illegality based on statutes, bills, and other written forms of law, people do get away with "breaking the law" not by just evading it but by finding loopholes in it. This does an injustice to the credibility we give what we call “law”. For instance, OJ Simpson was released on a technicality that did not address whether or not he actually committed the crime. The same has happened for countless other cases in efforts to preserve one's rights (illegally obtained evidence, etc). Additionally, this has occurred in the international realm, with heads of state "getting away with" breaking what has been described as "international law". Regardless of the specifics of each case, what occurs is the person who did commit the crime is set free and is not recognized as being a criminal by the law, even though the law states that that person's actions are criminal.

This sort of occurrence, regardless of its form, begs for a distinction between practical and conceptual law. Conceptually, OJ Simpson is guilty of killing his Ex-wife, but practically speaking he is not guilty. He has not committed an illegal act that is recognized by the enforcing powers of the law. Therefore, in all practical senses his actions were not illegal. This is not to say in a conceptual sense he hasn't performed an illegal act, but it does outline the lack of credibility given to the idea of law as applied to him, or in another sense, the practicality of law in his case. These statements are at odds with how many have defined illegality and how many would like illegality to mean, since they prefer to state "he got away with an illegal action". However, this statement is conceptual in nature and does not address the practicality of the situation. Additionally it overlooks the applicability of law by leaving the instance as just one's fortune to have evaded the consequences of breaking the law. Conceptually it is very easy to label OJ Simpson as a murderer, but that does nothing to the actuality of the situation, which is that he performed an illegal action but is not guilty of that action. His not being guilty in this sense leaves the idea of the illegality of his actions up in the air. To an extreme, if nobody faces consequence for an action that's deemed illegal, what is the point of labeling an action as illegal in the first place? This argument and the distinction it notes boils down to whether or not we want to keep the idea of legality in the conceptual realm, or have some practical credibility applied to it. Being in favor of the application of this definition is beneficial because otherwise claims of legality and illegality are no different than claims of morality and immorality.

The current notion is that there is law, and there is subsequent law enforcement. However, with law preceding enforcement there is no given credibility to the practicality of law. The practicality, it seems, hangs in the balance, waiting for enforcement to give it any validity. This occurs with international war crimes and the whole concept of international law. Without the ability to enforce law, the credible practicality of the law hangs in the balance. Instead of law being a rule that one realizes disobedience of will bring about consequence, it becomes a choice based on one's motivations and adherence to one's internal morality. If all laws were seen as this, then there would be no difference between law and morality. Therefore, I in order to have practical law in the sense of having a widespread credibility applied to its applicability, one must have enforcing ability for law.

Is "law" just a written concept upon which we apply logical reasoning to bring about consequence for an opposing action, or is it a rule that commands obedience prior to any applied enforcement? For all practical purposes, law does command obedience, otherwise it would not be projected as a law. Hence, it is not without reason to claim that such a command implies the means to enforce the law are present and active. This then implies that law itself, or at least the practical sense of law, requires the means of enforcing it to be present in order to distinguish it from the conceptual realm and subsequently demand adherence to it by the subjects upon which it applies.