ABSTRACT
Introduction: Questioning the Democratic Legitimacy of European Penal Law
In Western political systems it is elemental that legislation must have a democratic source in order to be legitimate. Above all, democratic legitimacy is regarded as important with reference to penal legislation, since penal power is paradigmatically the most intrusive form of political power. Therefore, it is generally acknowledged that punishment should be based on law enacted by a parliament, or at least that the parliament must be the principal, and in case of delegation, also the final legislative organ (nulla poena sine lege parlamentaria).2 Hence, within penal law, democratic legitimacy is usually considered as intimately connected to parliamentary majority decisions. However, some changes in contemporary penal law seem problematic with regard to the traditional claim of a parliamentary anchorage of penal legislation. Penal law is partly loosening its traditional foundation in the sovereign state due to a growing regulation of penal law at the international level. This development is most
1 ‘A Second Letter concerning Toleration’, in The Works of John Locke (London, 1963; org. ed. 1823), Vol. VI, p. 112.
