Judicial Innovation in Tort and the Principle of Legality in Criminal Law: A Ghanaian and Comparative Perspective

The thesis defended here can be stated sharply. Ghana's constitutional prohibition against judicial creation of criminal liability is normatively justified, for three reasons examined in Part II: the differing stakes that tort and criminal liability pose for individual liberty, the differing costs that retroactive judicial law-making imposes in a compensation regime as against a punitive one, and the differing democratic-legitimacy conditions attaching to a decision to redistribute loss as against a decision to criminalise conduct. But that justification is a justification for restraint in criminal law specifically; it has no necessary application to tort.