The principle of legitimacy according to the constitutional and legal text

Abstract

    By analyzing the rule of legitimacy in the Iraqi penal code no.111.for 1969 which its content (( No crime , no penalty only according to the law …)) by this base  principles of the penal code that related to the rule that there is no retroaction of the penal code to the past , the rule that the specialization regarded as common organism and the principle that the origin of  things is permission , has been set .According to the text of the first article of penal law , the concept of the text that the legislation authority issue the law and the judiciary can apply some of the instructions that came from the executive authority which have penal element the judge can’t rule without law in the same time the legislative authority cannot issue laws about details related to the administration because the administration know more about its affairs .

      When Iraqi permanent constitution released in 2005 a text arise in that assertion on legitimacy principle in the article (19\second) (( No crime , no penalty without a text …)). So constitution restrict the crimes and penalties in a text that issued from the legislative authority , this principle let the executive authority without a power to release instruction and decisions have a penalty element while these authorities are restricted to the legislative authority . in this matter tow problems arises that need solutions . These tow problems are:

 Is the legal text according to the article no.(19\ second) be as not constitutional ? So it might regarded as cancelled ? And in order to apply the legitimacy principle shall we apply the constitutional text or legal text? This research tried to set a solutions to these problems .