Understanding the Principle of Legality in Law and Its Purpose
Understanding the Principle of Legality
Understanding the Principle of Legality in Criminal Law and Its Purpose - The Principle of Legality is a Guarantee for a person's freedom with a limit of what activities are prohibited clearly and precisely. The principle also protects against abuse or abuse of authority about illegal acts and penalties.
So based on this principle, no act is permitted to violate the law by a judge if it has not been clearly stated by criminal law and as long as the act has not been committed.
Likewise the actions of someone who is capable cannot be said to be prohibited, before there is a ketentyan who committed the violation, and he has the freedom to do the act or leave it, so there is someone who violates it. In a sense, criminal law cannot apply backwards to acts that do not yet have rules, therefore the criminal law must go forward.
The principle of legality has a relationship with Von Feubach's theory
Initially the principle of legality has a relationship with Von Feubach's theory, which is called the Vom Psycologischen Zwang theory. It means that in determining the prohibited actions, not only in the actions listed, but also the type of penalty imposed.
The principle of legality applies in the realm of criminal law and is famous for the legendary adageum Von Feuerbach which reads nullum delictum nulla poena sine praevia lege poenali. Freely, the adage can be interpreted as "there is no criminal offense (offense), there is no penalty without (based on) the rules that preceded it". In general, Von Feuerbach divides the adage into three parts, namely:
This principle also applies in the realm of criminal law and is well known for the legendary adage Von Feuerbach which reads nullum delictum nulla poena sine praevia lege poenali. Freely, adage can be interpreted as "there is no crime (seconds), there is no penalty without (based on) the preceding rules". In general, Von Feuerbach divides the adagium into three parts, namely:
There is no penalty, if there is no law
There is no punishment, if there is no crime
There is no crime, if there is no penalty, which is based on the Act
Adagium is the basis of the principle that criminal provisions cannot be retroactive (non-retroactive hope) because an offense can be considered a crime if there are previous rules that violate the seconds to do, not after the offense has been committed.
The Purpose of the Principle of Legality
The purpose of the legality principle is to strengthen legal certainty, as well as to create justice and honesty for the accused, to make the detention function effective in criminal prosecutions, prevent abuse of power, and to strengthen the rule of law.
The principle is indeed very effective in protecting the people from the arbitrary treatment of someone in power, but it is considered less effective for law enforcement in responding to the rapid development of crime, and is considered by some experts to be a fundamental weakness.
Definition of Human Rights
In the state agreement theory, there are Pactum Unionis and Pactum Subjectionis. Pactum unionis is an agreement between individuals to form a state, while pactum subjectionis is an agreement between individuals and the state formed. Thomas Hobbes recognizes Pactum Subjectionis and does not recognize Pactum Unionis. John Lock recognizes both Pactum Unionis and Pactum Subjectionis, while JJ Roessaeu only recognizes Pactum Unionis.
All three understand this. But basically the treaty theory mandates the existence of a protection of the rights of citizens which must be guaranteed by the authorities and the form of the guarantee must be contained in the constitution.
In relation to this matter, human rights are fundamental rights that cannot be revoked because he is a human being. The referred human rights are now a set of rights developed by the United Nations since the end of World War II. As a consequence, states cannot circumvent the protection of the human rights of non-citizens.