Tag Archives: Retroactive Laws

Retroactive Laws

  • In US, this problem dealt with in Constitution: Art 1 para 3
  • Taken alone, retro rules are a monstrosity.
  • To appraise them intelligently, we must place them in the context of a system of rules that are generally prospective.   Curiously, then, situations ay arise where retro rules essential to advance cause for legality. More info at Dentist Calgary
    • When? – when things go wrong that retro statute often becomes indispensable as a curative measure for internal morality.  “Though proper movement is forward, sometimes we have to turn back and pick up the pieces”.
    • And: though taken by itself, retro impairs principle of legality, but it alleviate effect of a previous failure to realise two other desiderata of legality: that the laws should be made known to those affected by them and that they should be capable of being obeyed.
  • Don’t be fooled, retro not always curative, e.g Roehm Purge, killed 100 ppl, then Hitler made retroactive statute.
  • Second perspective is not so much contribution retro makes to inner morality of law, but rather to circumstance that it unavoidably attaches in some measure to the office of judge.
    • How? If A and B both have equally good claim on face of statute, and judge decides the case, he is inevitably engaging in an act of retrospective legislation.
    • Also, consider that after A v B decided, C and D have dispute and C refuses to settle because he thinks A v B decision was wrong and that it should be overruled. If overruling is made retrospective, then D loses out though he relied on a legal decision that was clearly in his favour.