is law for the judge to resolve and what is fact for the jury to find,
provides it own distinctive take on the distinction between substance
This study in the way in which one fundamental legal distinction
plays itself out in different legal contexts could generate the wrong
message. One might think these decisions of classification were simply
arbitrary and politically motivated. But that would be the wrong lesson
to grasp from this inquiry. The impact of context on legal analysis is
not arbitrary. There are good reasons why the distinction comes out
one way when the concern is legality and another way when the inquiry is achieving harmony between state and federal courts sitting in
the same city.
The deep message that unites this chapter with the others that follow is that the basic distinctions of criminal justice transcend the enacted law of particular states and countries. The local statutory law does
not determine the boundary that runs between substance and procedure or the way the boundary adapts to the changing context of the
inquiry. The message of this chapter illustrates the overarching theme
of this book. The basic distinctions of criminal justice require philosophical and conceptual analysis. On these matters, you cannot simply
look up the law in the books. You have to think about the problem and
clarify in your own mind the construction of the concepts that makes
the most sense.
U.S. Constitution, art. I, sec. 9, cl. 3
German Basic Law
7103(II); Mexican Constitution art. 14; Portugese
Constitution art. 29(1); European Convention on Human Rights §7(I).
See Judgment of Constitutional Court, October 24, 1996, 1997 Neue
Juristische Wochenshrift929. For a critical assessment of the Court's allowing
a breach of the prohibition against retroactive liability, see Jorg Arnold, Einschränkung des Rückwirkungsverbot, 1997(5) Juristische Schulung399.
See authorities cited in note 2 supra.
It is worth noting the difference between the two Latin maxims. Ex
post facto laws are statutes enacted after the occurrence of the crime. The maxim nulla poena sine lege is violated if the court, imposes liability, in the absence of
a statute, simply as a matter of common law development. Common law
crimes, so far as they still exist in England and the United States, violate the
maxim nulla poena sine lege but do not infringe on the constitutional prohibition
against ex post facto laws.
BVerfGE 25, 269 (Decision of the Constitutional Court 1969).
Resolution of the Constitutional Court of Hungary, No. 11/ 1992 (III.5)
George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of
Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J.880 ( 1968).
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Basic Concepts of Criminal Law.
Contributors: George P. Fletcher - Author.
Publisher: Oxford University Press.
Place of publication: New York.
Publication year: 1998.
Page number: 23.
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