A Theoretical Analysis of the Legality of Substantive Criminal Norms Szerző:
Gellér Balázs ELTE Eötvös Kiadó, 2012 This work tries to find the principles
which might govern cases where justice collides with legality as traditionally
understood, and offer a new understanding of the legality principle applicable
to substantive criminal law. The preconception on which this study rests is that
there is a common core to every legal system which - if rightly defi ned - can
assist in the understanding of a legal institution. The idea that such a
precondition exists receives support through every case and authority examined,
and it is hoped that it will eventually be, if not proven in this work, at least
powerfully boosted as an involuntary result of the discussion herein. This study
is not intended to be a work employing the comparative method, and therefore
when speaking of a particular legal problem not every aspect of it is examined
in every jurisdiction. It is a theoretical undertaking and arguments and
examples are selected on the basis of their relevance to the argument as a
whole. It is acknowledged that this may raise the suspicion of arbitrariness as
far as the presentation of supporting authorities is concerned. But it is also
hoped that the inclusion of some major works into the cited sources from the
legal systems under discussion will erase any such doubts. Finally, since
legality has a Janus face, being both a principle of constitutional law and
simultaneously defi ning the constitutionality of criminal law, when a segment
of the constitutionality of substantive criminal law is examined by attacking
the traditional understanding of legality, both these aspects of legality must
be utilised. In this respect criminal laws violating legality can be
unconstitutional even if no written constitution exists in a jurisdiction, or
the test of constitutionality is very different in the legal systems which are
under observation. It is therefore possible, for example, to apply principles of
constitutional interpretation developed in the jurisprudence of the Supreme
Court of the United States to problems arising in English or Hungarian criminal
law.