The closure of systems of penal sanction norms as systems of constitutive rules

Abstract

This article analyses the status of the principle of penal legality as a residual closure rule. It does so in the same sense in which Alchourrón and Bulygin use this notion but rejects its characterization as a rule that would qualify every action that is not “prohibited according to penal law” as “permitted according to penal law”. The crucial premise supporting this rejection can be found in the proposition that penal sanction norms have the status of constitutive rules, the function of which, in Hohfeld’s terminology, is to institute liabilities-to-punishment that are correlative to punitive powers. This position finds decisive support in Hart’s conception of rules that establish legal sanctions as secondary rules of adjudication, which back up some corresponding set of primary rules of obligation. On this basis, to serve as a residual closure rule for a system of penal sanction norms, the principle of legality must also be understood as a constitutive rule