cases, the only prohibition forbids them to apply a statute in a manner not predictable from its wording; we have seen that the legislature has worded some statutes so as not only to permit, but to require the courts to use their partnership role to apply statutes to causes it has not explicitly mentioned. Since legislation necessarily involves the delegation of some legislative, or rule-making, authority to judges, one question which arises is "Are there any constitutional limits on legislatives delegation of rule-making power to courts?" Are there limits to what legislatures can do as well as to what judges may do? In asking these questions, the author does not mean to discuss the related question whether Ethiopian courts are ever empowered to declare legislation unconstitutional. That is a difficult and important question, which cannot concern us here. If Ethiopian courts have this power generally, they will be in a position to enforce any limits on legislative action which may appear from the following discussion. Even if they lack power to declare legislation unconstitutional for delegating too much authority to them, they could control such legislative acts by refusing to exercise the discretion given them, or construing the grant as narrowly as possible. In this way, they might be able to force the legislature to be more explicit or detailed without actually declaring null and void what the legislature has already done. Finally, one may rely on the good intentions of Parliament and the Emperior to observe for themselves any limits which the constitution imposes. If this discussion prompts legislative awareness of any limits, and consequent self-restraint, it will have served an ample purpose whether or not Ethiopian courts are in a position to make the limits meaningful through enforcement. A. Retroactivity 28 The most universally accepted limit on legislative action regarding crimes is often, as in Article 55 of the Revised Constitution, included in the wording of the principle of legality itself: a legislature cannot make its rule retroactive in time, to make criminal an act which was not criminal at the time it was performed. Obviously, such a rule is implicit in the notion that the citizen must be warned what conduct will be considered criminal, so that he can decide how he will behave. In the absence of such a rule, legislatures could play the arbirtary role it was thought judges once took, and define some act which had already been committed as a criminal offence. Someone whom the government wished to see put away, a political opponent, for example, could be quickly dispatched if this expedient were possible. It should be noted that the judge, when he interprets a statute, is subject to no limitation of retroactivity. Even though it was not clear in advance of his decision whether a particular statute would apply to the conduct in a case submitted to him, if he decides the statute does apply, he will apply the statute in that case. He will apply it even though the conduct preceded his decition by some months, and even though the defendant may have acted in the mistaken belief that the conduct was not forbidden by the statute. Indeed, Article 78 of the Penal Code is quite clear about this. The Court is to reducebut not eliminate the punishment of “a person who in good faith believed he had a right to act and had definite and adequate reasons for holding this erroneous belief." (Emphasis supplied). A person without "definite and adequate reasons" for his mistake, one must assume, is entitled to no reduction at all. B. Statutory Vagueness 29 Another recognized limitation, which is enforced in the United States as a matter of constitutional doctrine, is that the legislature may not phrase its prohibitions too broadly-may not delegate too much rule-making power to the Ancel. "Création des infractions . . ," cited above at note 20, p. 91. P. Graven, work cited above at note 1. p. 17. Amsterdam, "The Void-for-Vagueness Doctrine in the Supreme Court," U. Pa. L. Rer., Vol. 109 (1960), p. 67. Andenaes, work cited above at note 1, p. 110. Levi, work cited above at note 3, p. 520 ff. Mahsoub, work cited above at note 1, pp. 34 ff., 47 ff. judge. This principle is obviously related to the doctrine of separation of powers, since by delegating a great deal of its rule-making authority to courts the legislature is threatening to obliterate one of the major lines of separation. It has refused to perform its function of deciding what conduct should be punished. On the other hand, constitutional analyses of the problem are most frequently made under the Due Process Clause of the American Constitution (which corresponds to Article 43 of the Ethiopian Constitution). This is no doubt because of the dangers which statutory vagueness present to the citizen: he is unsure what conduct is made illegal, and hence may desist from valuable conduct or be inadequately warned of what will be considered wrongful; to the extent vague statutory language leaves the judge free to improvise, the citizen is unprotected from the judicial whim and fiat which it was originally the function of the principle of legality to prevent. The notion that legitimate activity may be deterred by a vague statute is particularly important to the American doctrine of vagueness. It can be understood by recalling the observation made above, that a judge is not obliged to follow the rule against retroactivity in applying his interpretations of the law. The practical effect of retroactive application of interpretation is that a citizen will fear to engage in any activity which might fall under the prohibition of the statute, as interpreted. That is, the possibility that a statute will be interpreted to apply to and forbid certain conduct will hinder that conduct, even if the interpretation is unlikely or is never made. This effect might be acceptable if only objectionable conduct were inhibited by a uncertain language or a particular statute or if the uncertainty was reduced to the minimum by careful drafting. The danger, however, is that language which is very vague may inhibit-and may even be used or designed to inhibit-activities which are legitimate or which enjoy special protection under the law, as in the case of religious worship and other freedoms protected by the constitution. This possibility, that the threat of future interpretations of overly uncertain language may inhibit people from engaging in legitimate or specially protected activities, is a particularly unacceptable consequence of vague statutory language. Where an American court finds this possibility, it will nullify the statute under the Due Process Clause as unconstitutionally vague, unless it can quickly eliminate the uncertainty by interpretation. As might be expected, such nullification is more likely where the activities being hindered by the uncertainty of the law are highly protected, as in the case of political activities. It may be easier to understand the rule against statutory vagueness and the reasons for it by considering a specific example. Suppose that in place of the present Part II of the Penal Code, the Special Part, Parliament proposed to enact the following provision: Art. 248: Whoever intentionally or negligently acts to harm the state, national or international interests, the public interest, the community, individuals, the family, or property shall be punishable with one or more of the penalties described in the General Part, Book II, in accordance with the needs of the case. Now suppose that someone charged under this provision protests that it is unconstitutionally vague, relying on the principle of legality. If the principle of legality were applicable only to judges, and simply forbade them to go outside the written law, the principle would be inapplicable in this case; the provision does constitute written authority defining a crime, even if the definition is a very vague one. But the principle is also applicable to legislatures; it requires them to attain a certain standard of precision and detail in their instructions to judges. A provision such as the above would fail to meet any such standard. The area of uncertainty in its application is limitless. The citizen would not know what it was that he was forbidden to do, he might fear to engage in valuable social activities; he would be essentially without protection against judicial whim and fiat, since the legislature has essentially delegated to the judge broad rather than limited, judicial power to declare conduct criminal. If courts have authority to declare statutes unconstitutional, they could surely declare this statute unconstitutionally vague. Let us consider another example, which is perhaps not so extreme, but which may help to understand why more precision is generally expected of penal than civil legislation Title IX, Chapter I, of the Ethiopian Civil Code deals with the problem of "Extra-Contractual Liability." Generally speaking, this is the Civil Code analogy of the law of crimes. Article 2027 (1) provides that "Irrespective of any undertaking on his part, a person shall be liable for the damage he causes to another by an offence." An "offence" is then defined in several general provisions. For example, Article 2030 (1) states that "A person commits an offence where he acts or refrains from acting in a manner or in conditions which offend morality or public order"; Article 2033 (1) states that "A person commits an offence where he turns to his own advantage powers conferred on him in the interest of another." Although Articles 2038-2065 then state specific examples of "offences," such as physical assault (Article 2038), an act need not fall within these particular provisions to constitute an offence. It is sufficient that it meet one of the general definitions of "offence," such as those stated in Articles 2030 (1) and 2033 (1). As a mattter of civil code drafting, these provisions are well constructed. If an individual can show that he has been harmed by another person, it is already established that a tangible loss has been suffered, and that the defendant is its cause. The issue in a civil trial is, who is to bear this loss? Is the loss to be borne by the person who suffered, it, the plaintiff? Or are there reasons to require the person who caused the loss, the defendant, to make it goodthat is, to bear the loss himself? Since the question is one of allocating a financial loss which has already occurred, since the loss must be borne and the question is only who is to bear it, it may be fair to state the rules of liability in a very general way. The judge then has maximum freedom to allocate responsibility according to the apparent justice of the individual case. In a criminal case, on the other hand, it is not at all certain or necessary that any actual harm has occurred. For example, persons are punished for attempts, without any consideration whether damage of any sort was done. Moreover, even where harm has occurred, the criminal prosecution is not intended to make that harm good; any suit for reparation is to be brought separately by the injured party, although it can be joined with the criminal prosecution under Article 100 of the Penal Code. The purposes of the criminal prosecution, punishment and/or rehabilitation, are to vindicate a public interest in social order, not to redress private injuries. The government is pitted directly against the individual defendant and seeks to take away his life, liberty or property. If it succeeds in convincing the court to penalize him it will have introduced a new element of loss to the cause: the defendant will be required to give up a life, liberty or property or property which no other person need have lost, and which in any event does not go to reimburse any victim who may exist for whatever damage he may have suffered. Because, first, it is the government which is involved and, second, the government is seeking to impose a new loss or penalty on the accused, much higher standards of certainty are appropriate in penal legislation than in civil. In the criminal area, statutes such as Articles 2030 (1) and 2033 (1) of the Civil Code would be much too uncertain; they do not define the limits of possible government action with a precision sufficient to warn the citizen what he may not do, and to protect him against arbitrariness. How much uncertainty is "too much" is an extremely difficult question. Uncertainty which can be avoided by a more precise use of language is more likely to be found objectionable than uncertainty which is largely unavoidable. Thus, words of infinite scope, such as "immoral" or "evil" are particularly suspect. As has already been suggested, the answer also may vary with the type of activity which is being inhibited by the peripheral vagueness of the statute. A statute inhibiting, for example, religious practice might be more closely examined than one inhibiting questionable forms of sexual conduct. More important social values may be at stake in the first case than the second; there is more to be lost if they are inhibited. One suggested guideline attempts to distinguish between permissible interpretation and an impermissibly broad statute by examining the result of the judicial process on the statute: if a court can eliminate the area of uncertainty by interpreting the statute in one case, then the statute is not "too broad." If, on the other hand, the uncertainty cannot be eliminated by interpretation, then the statute is "too broad" and should not be applied. The legislature should be required to try again, more carefully this time.30 Articulated by the United States Supreme Court in: Dombrowski v. Pfister, United Sates Supreme Court Reporter, Vol. 380 (1965), p. 479. Shuttlesworth v. Birmingham, United States Supreme Court Reporter, Vol. 382 (1965), p. 87. Compare the test for distinguishing interpretation from analogy suggested in. The limits on the legislature as well as those on the court, then, respond to the same considerations: the essentially political policies of affording sufficient notice to enable the citizen to make a reasonable prediction about what action the government might take affecting his freedom, and to protect him against arbitrary infringements of his liberty. If this is a valid generalization, then one may recast the analysis of "legality" into the terms suggested by an American criminal theorist, Jerome Hall: that the question involved is one of the proper "girth" of legislative statement and of judicial application of such statements. At what level of generality can a legislature or a court operate in search of solutions impinging on the citizen's liberty? Thus seen, the principle of legality is an exhortation to both legislative and judicial attitudes. In effect, it says: "Be specific!" Particularization, concreteness, concern for methods and rules which will enable the citizen to predict where he stands and which will protect him against whim or fiat are the essential demands of the rule. 31 XI. IMPLICATIONS OF THE PRINCIPLE OF LEGALITY FOR INTERPRETATION We concluded that under the principle of legality, the judge retains the power to adopt any interpretation of a statute which a reader of the statute would think possible from its words (subject to the possibility that he will refuse to adopt any interpretation, because he finds it too vague). The question then arises that implications can be drawn from the principle to guide the interpretive process. A. Indispensability of Statutory Elements 32 We earlier discussed at length the relationship between the General and Special Parts of the Penal Code, and remarked that the General Part would frequently define or even state elements of an offence in a way that would not be clear from the Special Part provision alone. The example used was the requirement of "intention" for a violation of Article 523, which is not mentioned in Article 523 itself but clearly must be inferred in view of Articles 57-59 of the General Part and the overall arrangement of the homicide provisions. By stressing the duty of the court to ascertain and respect legislative purposes in criminal matters, the principle of legality makes it clear that courts must find all elements of a crime to be present for a conviction to be justified-elements which are implied from the General Part as well as those specifically mentioned in the Special Part. If further evidence of this elementary principle were necessary, it could be found in Article 23 (2): "The criminal offence is only completed when all its legal, material and moral ingredients are present." (Emphasis supplied.) B. Ordinary Usage Over Special or Technical Meanings 33 Since the judge always assumes legislative regularity, he is entitled to assume that the legislature has acted, in regard to any particular statute, with the principle of legality and its purposes in mind. That is to say, he is entitled to assume that the legislature intended its enactment to give adequate warning of the circumstances in which it would apply. Of course he, too, is under an injunction to interpret and apply a criminal statute in a way which might have been expected from its language and context. One of the criteria by which the judge chooses among the available, possible word meanings, then, should be a consideration of those meanings which were likely to occur to the persons to whom this warning was directed. If the statute is a criminal statute of general application, he may properly hesitate before giving some word a special or technical meaning, if this will operate to the prejudice of the defendant. If the legislature proposed its statute to have general application, it probably also chose words which could be used in the same sense in which they are generally understood to express its purpose. It would 31 Work cited above at note 17. p. 36. 32 J. Graven, "Les principes de la légalité. ..." cited above at note 1, p. 393. 33 Freund, work cited above at note 3, pp. 180-184. Hall, work cited above at note 17, p. 36 ff. Hart & Sachs, work cited above at note 1. pp. 1219 ff., 1411 ff. Radin, work cited above at note 1, p. 867 ff. Stone, work cited above at note 3, pp. 31-34. not have meant to trick the ordinary man by using common words in some special sense. On the other hand, where a statute seems to be directed to a special group--as is the case with Article 520, "Refusal to provide Professional Services," for example-it is proper to give uncertain words a meaning which would be understood by members of that group, even if these are not the words' ordinary signification. This criterion is not exclusive if the judge is convinced by considerations of context, purpose, or the like, that the legislature assigned a different meaning to a word or phrase than the subject of the rule was likely to, he is free to adopt that special meaning; he does not violate the principle of legality thereby. But the purposes of the principle of legality suggest that in determining what the statute actually means it is appropriate to consider how the subject of a statute is likely to understand it. To a certain extent this suggestion resembles the once popular doctrines that penal statutes must always be interpreted to favour the accused, or that the "plain" or "literal" meaning of criminal statutes must always be adopted. Given the law's acceptance of "warning" as an important function of criminal law, there is reason to favour the meaning a provision is likely to have to those who are governed by it over other possible meanings, in the absence of compelling considerations to the contrary. Such favoritism could be called adopting a "plain meaning," and is in a meaningful sense "favouring the accused." But the principle “in dubio pro re" far overstates the force which can properly be ascribed to the ordinary meaning of statutory language. The judge has the power to choose among any of the possible meanings of a statutory word or phrase, however "plain" one of them may be. The question is how he should exercise his power in order to attain justice. The meaning most likely to occur to an interest reader of the statute is an obvious choice. C. Ignorance of the law as an excuse 34 Even though some provision of the law may give clear warning that a particular act or omission may be treated as an offence, a citizen may be totally unaware of the criminal nature of his act. This need not be due to deceitful action on the part of the government in hiding the law once passed. Indeed, if the government ever did act in such a reprehensible manner, it would seem entirely within a judge's authority to refuse to enforce the statue in question. Rather, the citizen's ignorance of the law may occur whenever the "crime" is not an act which the citizen regards as immoral (and therefore likely to be a crime); criminal law today is so complex that few citizens are likely to learn of any "warning," unless it received special prominence because of newspaper stories, the advice of their lawyer, or the like. This is perhaps especially likely to be true in a country such as Ethiopia, where the complexities of modern life are new, where codes, court decisions, and legal information are not widely available, and where not all citizens understand the languages in which they are published. A consequence of this situation is that several theorists now appear to be arguing for reconsideration of the long-standing doctrine that "ignorance of the law is no defence." If warning of the law's penalties is important, they urge, the law must be prepared to take account of the many cases where citizens do not know the law and could not be expected to surmise it, because the law is highly technical and deals with what are sometimes called formal or statutory wrongs rather than moral wrongs. Article 623, penalizing failure to register the birth of an infant, is a good example of the kind of regulation they have in mind. Provision for registration of births may be important to a modern nation; enforcement of such a provision by a criminal penalty is commonplace. But the average citizen would not think a failure to register the birth of his child was likely to be a crime, for he would not consider it immoral; his view-whether correct or not-is Ancel, Social Defence, cited above at note 20, pp. 126-28. Andenaes, work cited above at note 1, p. 105. Boni, "La mise en pratique des lois dans les nations en voie du developpement," in Twelfth International Course in Criminology (Hebrew University, Jerusalem, 1965), p. 88. Glaser, work cited above at note 6, p. 935 ff. Hart & Sachs, work cited above at note 1, pp. 1225-26. Thornstedt. work cited above at note 6, p. 223, n. 3. |