Would this be an example of ex post facto justice?

[Velocity]

Hypothetical: A brand new country is founded. This country, after it is founded, now needs to draft laws and a constitution for itself.

But right after the country is founded - but prior to any laws being made - someone commits a robbery.

Now, *after *the laws are made, the new justice system has the robber arrested and prosecuted for the crime. But the robber states that “robbery wasn’t a crime at the time that I did it” - which is, technically, true - there were no laws prohibiting robbery because there weren’t any laws yet.

Now, if the crook were to be convicted of robbery, would this be an example of ex post facto justice, legally speaking? Obviously, from a moral perspective, the robber would be wrong, but from a legal perspective, would such an argument be valid at all?

[Giles]

Generally, in a new country, the pre-existing laws of the country (9r countries) that it was formed from will apply. So if it was a crime under the old laws, it can be treated as a crime in the courts of the new country.

[Alley_Dweller]

When the current Constitution of the United States was written, it included the clause “No Bill of Attainder or ex post facto Law shall be passed.” Hence, in the United States, passing an ex post facto law is prohibited and a criminal defendant can use that as a defense in court. But there was nothing that forced the writers of Constitution to include this clause. Presuming the original states would have agreed to it, they could have written a clause saying “ex post facto laws may be passed” or “ex post facto laws may be passed subject to the following conditions…” If they had done so, defendants charged under an ex post facto law would have no defense in court.

When you are making up a brand new legal system from scratch, you pretty much have free reign to decide how it will work. You can ban ex post facto laws or you can embrace them, as you choose. Similarly, you can specify how you will deal with crimes that occurred prior to the establishment of your new legal system. There is no inherent principle that prohibits you from making up rules for your new country. The only restraint is your ability to enforce the new rules. If you make up unreasonable and draconian rules, you run the risk that the governed will revolt against them and then you face the test of whether you have sufficient power to put down the revolution and enforce your rules in the face of the revolt.

[kaylasdad99]

Free REIN.

[friedo]

Here’s an example from New York’s constitution:

@New York State Constitution

§14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.

Since murder has always been a crime at common law, there was no period of anarchy between when New York adopted its constitution and when they codified certain aspects of criminal law.

[dofe]

While not exactly fitting the hypothetical described by Velocity, a somewhat similar situation has arisen when Congress decided to form new courts of appeals by splitting up a previously existing court of appeals into two. For example, when the 11th Circuit was created by splitting up the 5th Circuit in 1981, there was a question as to whether 5th Circuit caselaw would be binding on the newly created 11th Circuit. In one of the first cases it heard, the 11th Circuit addressed this very issue:

Under the established federal legal system the decisions of one circuit are not binding on other circuits. “(I)t is common knowledge that the decisions of the court of appeals for one circuit are not binding upon the courts of appeals for other circuits.” 1B J. Moore, Federal Practice P 04.02(1) (1980). The various circuits differ somewhat in the extent to which they treat their own decisions as binding on themselves. Some appear at times to treat their own decisions as merely persuasive; others by rule or practice permit one panel to overrule another after prior notice to all judges of what is proposed, followed by no objection. The old Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule.

The act dividing the old Fifth Circuit into two circuits did not address the issue of what body of law would be adopted or otherwise would become the body of law of either of the two circuits for cases “submitted for decision” on and after October 1, 1981. To decide this case, and later Eleventh Circuit cases, we must decide whether this court shall adopt some established body of law as its body of precedent, and if so, effective as of its coming into existence, what established body of law will be chosen. For several reasons we choose the decisions of the United States Court of Appeals for the Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to close of business on that date.5 We consider that body of law worthy for governance of legal affairs within the jurisdiction of this new circuit.

[Si_Amigo]

If it’s a revolution that cause the new country then tribunals can be formed and the guillotine can be brought out. And it’s not uncommon for people to be shot or hung at the scene of the crime in such situations. Ex Post Facto be damned.

[Gary_T]

@Velocity

Hypothetical: A brand new country is founded. This country, after it is founded, now needs to draft laws and a constitution for itself.

[snip]

Now, if the crook were to be convicted of robbery, would this be an example of ex post facto justice, legally speaking?

Technically, I think it could be depending on whether the background situations others have described actually apply.

Also being technical :), I wonder how the country could be considered founded if it had no constitution. Seems to me that adopting a constitution is what makes it a country rather than an idea.

[Hari_Seldon]

When the US constitution was drafted, there were state laws to prosecute mundain crimes like robbery and murder. So the issue really didn’t arise. Also, I suspect such crimes would be considered common law crimes and be prosecutable even without specific statutes.

[Really_Not_All_That_Bright]

@Gary_T

Also being technical :), I wonder how the country could be considered founded if it had no constitution. Seems to me that adopting a constitution is what makes it a country rather than an idea.

A constitution is not a requirement for a country. Most countries didn’t have any sort of organic law prior to 1776; the legislature, monarch or whatever ruling authority existed adopted laws as it saw fit. To the extent that any constitution existed, it was generally a body of tradition rather than a single document that required adoption.

[Hershele_Ostropoler]

Assuming ex post facto laws are prohibited, the constitution might do any or all of:
[ol]
[li]Prohibiting EPF laws generally but with a provision allowing for some of the first laws to be retroactive to the founding of the country[/li][li]Allowing prosecutions under whatever law was in effect before it was passed, even if it was technically not the same state.[/li][li]Allowing for recognition of malum in se common-law crimes perpetrated before the statutes caught up[/li][/ol]

The reason retroactive laws are generally barred is to prevent someone from being prosecuted for doing something they thought was legal at the time (both in the interests of justice, and to close off one avenue for the state to target a bothersome individual). Someone committing a robbery during a temporarily lawless period may think that lawlessness means the justice system lacks the authority or power to punish them, but they don’t think it means robbery is actually not wrong.