Alberto di Martino (Scuola Superiore Sant'Anna di Pisa – School of Law) has posted Interlegality and Criminal Law (Interlegality and Criminal Law (In Gianluigi Palombella and Jan Klabbers (Eds) Interlegality, Cambridge, 2019 Forthcoming) on SSRN. Here is the abstract:
When interlegality issues are raised, criminal law reveals its peculiar stance – at the same time, paradoxical and paradigmatic. On the one hand, it has been historically conceived as related to the very highest degree to State’s sovereignty. Legality has been consequently represented first and foremost as ‘domestic legal base’ especially for the ‘offense definition’. On the other hand, the paradigmatic feature of CL is revealed through duties to penalize at international and supranational level (differences as to the reach of them are not relevant here) – currently, a deeply rooted attitude of international bodies.
I maintain that only bodies with direct democratic investiture are legitimately competent for abstract criminalization choices, i.e. for drawing the fundamental boundaries of an offence definition. Nevertheless, the external as well as domestic control (see the example below) on the concrete features of every legal order in action needs to be carried out according to an “effectual perspective”, i.e. in order to effectively protect liberty and human rights. Here, RoL issues are at stake: preference should be given to the legal construction – combining different layers of legal orders – which provides the broadest safeguards “in action”. That’s why a proper interpretation of provisions such as Art. 53 CEDU, Art. 53 CFREU is of paramount importance in interlegality issues involving CL.
For those who are curious, here is a definition of interlegality: "Interlegality refers to the interpenetration between different normative orders, mostly between national law and customary law. Such a mixing or blending of normative orders requires a situation of legal pluralism."–Marc Simon Thomas (link).