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Vol 22 No 7 July/August 2017

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Retroactivity and the Common Law

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ISBN13: 9781841137612
Published: February 2008
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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This book analyses the common law's approach to retroactivity. The central claim is that when a court considers whether to develop or change a common law rule the retroactive effect of doing so should explicitly be considered and, informed by the common law's approach to statutory construction, presumptively be resisted. As a platform for this claim a definition of 'retroactivity' is established and a review of the history of retroactivity in the common law is provided. It is then argued that certainty, particularly in the form of an ability to rely on the law, and a conception of negative liberty, constitute rationales for a general presumption against retroactivity at a level of abstraction applicable both to the construction of statutes and to developing or changing common law rules.

The presumption against retroactivity in the construction of statutes is analysed, and one conclusion reached is that the presumption is a principle of the common law independent of legislative intent. Across private, public and criminal law, the retroactive effect of judicial decisions that develop or change common law rules is then considered in detail. 'Prospective overruling' is considered as a potential means to control the retroactive effect of some judicial decisions, but it is argued that prospective overruling should be regarded as constitutionally impermissible.

The book is primarily concerned with English and Australian law, although cases from other common law jurisdictions, particularly Canada and New Zealand, are also discussed. The conclusion is that in statutory construction and the adjudication of common law rules there should be a consistently strong presumption against retroactivity, motivated by the common law's concern for certainty and liberty, and defeasible only to strong reasons.

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Subjects:
Constitutional and Administrative Law, Statutory Interpretation and Legislative Drafting
Contents:
Introduction
1. Concepts, Labels and Limitations
A Introduction
B Retroactivity
C Retrospectivity
D Confusing Usage
E Problematic Usage
1. Waldron on Criminal Sentencing
2. Fuller on Tax Liability
F The Scope of this Book
G Illustrations of Conceptual Distinctions
1. Cases Relating to Contractual Rights
2. Cases Relating to Personal Status
H Conclusion
2. Historical Review
A Introduction
B General History and Statutory Construction
C Adjudicative Retroactivity
D Conclusion
3. Rationales for a General Presumption Against Retroactivity
A Introduction
B Certainty
1. The Meaning of Certainty
2. Certainty and Reliance
(a) The Case for Actual Reliance
(b) Evaluation of the Role of Actual Reliance
(c) Certainty and the Ability to Rely on the Law
3. Certainty and Autonomy
C Negative Liberty
1. Negative Liberty Generally
2. Deprivation of Security Relating to Past Events
3. Removal of an Actual Freedom
4. Negative Liberty and Criminal Law
(a) Nullum Crimen Sine Lege Antea Exstanti
(b) Nulla Poena Sine Lege Antea Exstanti
D Fair Warning
E Defeasibility
1. Introduction to Defeasibility
2. A General Principle of Fairness
3. Where Uncertainty is Inevitable
4. The Exceptional Nature of Retroactivity
F Conclusion
4. The Presumption Against Retroactivity in Statutory Construction
A Introduction
B The Nature of the Presumption Against Retroactivity
C Applications of the Presumption Against Retroactivity
D Fairness as a Determinant of the Applicability of the Presumption
E A Presumption of Variable Strength?
F Rebuttal of the Presumption Against Retroactivity
1. Express Words or Necessary Intendment
2. Validating Statutes
3. Importance of Subject Matter
G Detailed Studies
1. The Intertemporal Effect of the Human Rights Act 1998 (UK)
(a) Was Retroactivity in Issue?
(b) Treatment of the Presumption Against Retroactivity
(c) Applicability of the Presumption Against Retroactivity
(d) Fairness and a Presumption of Variable Strength
(e) Statutory Language
2. Retroactive Sentencing
(a) Article 7 of the ECHR and the Common Law Presumption Against Retroactivity
(b) The Common Law Presumption Against Retroactive Sentencing
(c) Retroactive Changes in Favour of the Defendant
H Conclusion
5. Adjudicative Retroactivity
A Introductory Matters
1. What is Adjudicative Retroactivity?
2. The Declaratory Theory
3. The Scope of this Chapter
B The Doctrine Of Precedent and Judicial Attachment to Existing Principle in Novel Cases
C The Marital Rape Cases
1. Outline of the Facts, Decisions and Issues
2. Foreseeability of Legal Change
3. Heinous Conduct
4. Changed Status of Women
5. An Illogical Immunity
6. Conclusions on the Marital Rape Cases
D Restitution of Money Paid under a Mistake of Law
1. The Facts and Issues in Kleinwort Benson v Lincoln County Council
2. Reasons for Retroactivity
E Private Law
1. The Creation of New Law without Overruling Prior Authority
(a) Existing Authorities in Disarray Making a Degree of Retroactivity Inevitable
(b) Ability to Rely on the Law not in Issue
(c) Gradual Development of New Law
(d) Moral Obloquy
(e) Use of Obiter Dicta to Signal a Change in the Law
2. The Creation of New Law by Overruling a Prior Authority
(a) Ability to Rely on the Law not in Issue
(b) Prior Authority Wrong in Principle
(c) Response to Changed Legal Circumstances
(d) Response to Changed Factual Circumstances
(e) Absence of Effect on Litigants before the Court
(f) Refusal to Overrule a Decision because of Potential Retroactive Effects
3. Overruling a Prior Judicial Interpretation of a Statute
4. Conclusions on Private Law
F Public Law
1. The Creation of New Law without Overruling Prior Authority
2. The Creation of New Law by Overruling Prior Authority
(a) Judicial Review of Questions of Law
(b) Judicial Review of Questions of Fact
3. Overruling a Prior Judicial Interpretation of a Statute
4. Conclusions on Public Law
G Criminal Law
1. The Creation of New Law without Overruling Prior Authority
(a) Judicial Response to New Factual Circumstances
(b) Perceived Immorality
2. The Creation of New Law by Overruling Prior Authority
(a) Prior Authority Wrong in Principle
(b) Retroactivity in Favour of a Defendant
3. Overruling a Prior Judicial Interpretation of a Statute
4. Conclusions on Criminal Law
H Overruling and the Age of a Decision
6. Prospective Overruling
A What is Prospective Overruling?
B The Status Quo
1. England
2. Australia
3. New Zealand
4. Canada
C Evaluation of Prospective Overruling
1. Inconsistency with the Proper Scope of the Judicial Function in Common Law Systems
2. Arbitrariness
3. Prospective Overrruling of Decisions about Statutory and Constitutional Construction
D Conclusion
7. Conclusions
A Foundations
B Comparison of Cases of Statutory and Adjudicative Retroactivity
C Approaching Rebuttal of the Presumption
D Legislative and Ju