However, in the Electrolux case, Chief Justice Gleeson stated that the principle of legality “is not merely a reasonable guide to what a parliament in a liberal democracy is likely to have intended; This is a working hypothesis, the existence of which is known to both Parliament and the courts, and on the basis of which the language of the law is interpreted. The assumption is one aspect of the rule of law. Chief Justice Gleeson`s testimony has since been repeatedly upheld by the Supreme Court. But what does it mean to call the principle of legality an aspect of the rule of law? On the other hand, the principle of legality also applies, that no one can be above the law. This means that ignorance of a law is almost never recognized as self-defense, except in the very rare cases of legal errors. When a law is clearly drafted and thoroughly promulgated, all citizens are bound by it, whether they know it personally or not. Ignorance of a law can lessen the severity of guilt and perhaps reduce the mens rea degree from “knowingly” committing a crime to “negligent,” but criminal law in the United States states that ignorance is almost never the same as innocence. The principle of legality states that it is not the personal knowledge of the accused that determines what he can and cannot do, but the law of the land. The objective of this chapter was to present two fundamental legal concepts of Swiss law, both crucial for public administration: the law and the principle of legality. From the concept of law, it has emerged that law consists not only of written laws adopted by parliament (formal law), but also includes norms adopted by the executive and public authorities (substantive law). The two aspects (“rule of law” and “legal basis requirement”) of the principle of legality are equally lawful. Their description clearly showed that formal and substantive law are part of Swiss law.
In the Federal Council`s dispatch on the total revision of the Constitution, the term law was defined as a reference to the Constitution, the law and ordinances (Bundesrat 1997: 134). More specifically, in the field of legal law, more and more legal norms are generated by the executive. The democratic legitimacy of the law is also called into question when international rules are the basis of public action. Private bodies adopt standards that are sometimes later incorporated into law (Uhlmann 2013). This development highlights a shift in the centre of power, which is no longer located in the democratic (representative) body. Less formalized normative instruments such as soft law are becoming a new category in the typology of (formal) sources of law. Finally, the infallibility of the law has been called into question with the development of constitutional competence. From a jurisprudential perspective, some identify the beginnings of global administrative law (Kingsbury et al. 2005). Others argue that the principle of legality must be reconsidered (Popelier 2012: 48-54). The principle of legality guarantees that no accused may be punished arbitrarily or retroactively by the State. This means that a person cannot be convicted of a crime that was never publicly announced, neither by an overly vague law nor by a criminal law retroactively passed to criminalize an act that was not criminal at the time it occurred.
It requires judges to always rely on the defendant when interpreting the laws and prohibits finding guilt without clear and reasonable justification for that judgment. Nevertheless, the law implicitly referred to conflict-of-law rules between legal doctrine and case-law (Bundesrat, 1997: 134). In other words, the law also referred to something that was not explicitly included in the law. Another example on this point shows that Swiss law is not limited to written law. In the context of the revision of the Federal Constitution in 1999, which was described as a “fundamental reform” and “update” of constitutional law (Bundesrat 1997: 20 and 9), the idea of a substantial constitution was invoked. The adoption of this new text was justified by the fact that the Constitution of 1874 – a formal law – did not cover all Swiss constitutional law. The idea of substantial constitution has been used to designate all the rules and principles that make up constitutional law (Aubert 1993: 101-103). These were constitutional systems without a written constitution, such as those in the United Kingdom or New Zealand. It then included the practice of the Federal Assembly and the Federal Council, the case law of the Federal Supreme Court and numerous norms of international law to which Switzerland is committed (Federal Council 1997: 17). The constitutional revision did not codify the entire substantial constitution, since “the constitutional text never fully restores substantive constitutional law” (Bundesrat 1997: 19). This conception of the Constitution therefore shows that Switzerland has a “living constitution” that has developed over time, but above all in terms of the scope of its values.
Here, the judge plays a major role. Respect for fundamental rights, democracy, separation of powers and federalism represent these Swiss constitutional values and contribute to shaping the activities and borders of the state, including in the Swiss public administration. 112 Although the extended principle has not been applied, there have been a number of cases during this interregnum in which individual judges have concluded that PoL may have a proportionality dimension: HM Treasury v Ahmed [2010] UKSC 5, [2010] 2 A.C. 534, at [122] (Lord Phillips); Pham v Secretary of State for the Home Department [2015] UKSC 19, p. [113], [118]–[119] (Lord Reed). First, the principle is opposed to retrospectivity. Parliament must use clear and unambiguous language to pass legislation “that retroactively distorts an existing law under which persons have ordered their affairs, exercised their rights, and assumed responsibilities and obligations.” The rule of law requires laws to be forward-looking because it is radically unfair to hold a person accountable for violating a law that did not exist at the time they committed their acts. The principle of legality cannot overcome dense or labyrinthine legislation. But it ensures that fundamental rights and principles are not overridden by general or ambiguous words.
Lord Hoffmann noted in R. v. State Secretary, Ministry of the Interior; Ex parte Simms, there is a “too great risk” that the full scope of the general or ambiguous terms will not be clear at first glance from the law and thus “go unnoticed in the democratic process”. The principle of legality means that Parliament cannot hide in the dark corners of a broad and vague power. It must set any deviation from the general legal system in light of “irresistible clarity” so that people look at the law and know what the legal consequences are. 74 In this context, note Lord Sales` call for “prudence,” “stability,” and the “slow wave of constitutional principles” (P. Sales, “Legalism in Constitutional Law: Judging in a Democracy” [2018] P.L. 687, 698). Ultimately, it is unlikely that the legislature will overturn fundamental principles, violate rights, or depart from the general legal system without expressing its intent with irresistible clarity. 177 See, for example, R. v Secretary of State for the Home Department, ex parte Simms, [2000] 2 A.C.
115, 130B (Fusion of anxiety examination cases Wednesbury and legality); H. Woolf, J. Jowell, C. Donnelly and I. Hare, De Smith`s Judicial Review, 8th edition (London 2019), chap. 11 (blind examination of substantive and legality review cases in the chapter on substantive review). The rule of law as a constitutional principle requires that a citizen, before committing to a course of action, be able to know in advance what the legal consequences will be. If these consequences are regulated by a law, the source of that knowledge is what the law says.
If the legal basis is substantive law, its legal quality is assessed on the basis of its accuracy. This element makes it possible to assess the degree of predictability of the law for the citizen. However, practice shows that the degree of precision is a criterion that can be easily achieved. That flexibility is accepted on the ground that, first, the legislature cannot provide for everything and, second, it is also for the court to clarify the legal basis. It is the elements of the application hypothesis that then make it possible to determine the degree of precision of the legislation.