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چکیده
To grasp fully the significance of this principle (which is usually described by using the Latin maxim nullum crimen nulla poena sine lege) a few words of introduction are necessary. National legal systems tend to embrace, and ground their criminal law on either the doctrine of substantive justice or that of strict legality. Under the former doctrine the legal order must primarily aim at prohibiting and punishing any conduct that is socially harmful or causes danger to society, whether or not that conduct has already been legally criminalized at the moment it is taken. The paramount interest is defending society against any deviant behaviour likely to cause damage or jeopardize the social and legal system. Hence this doctrine favours society over the individual (favor societatis). Extreme and reprehensible applications of this doctrine can be found in the Soviet legal system (1918–58) or in the Nazi criminal law (1933–45). However, one can also find some variations of this doctrine in modern democratic Germany, where the principles of ‘objective justice’ (materielle Gerechtigkeit) have been upheld as a reaction to oppressive governments trampling upon fundamental human rights, and courts have had recourse to the celebrated ‘Radbruch’s formula’. Radbruch, the distinguished German professor of jurisprudence, created this ‘formula’ in 1946. In terms subsequently taken up in some German cases, he propounded the notion that positive law must be regarded as contrary to justice and not applied where the inconsistency between statute law and justice is so intolerable that the former must give way to the latter. This ‘formula’ has been widely accepted in the legal literature. In contrast, the doctrine of strict legality postulates that a person may only be held
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