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Vol 24 No 12 Dec 19/Jan 20

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Merkin and Flannery on the Arbitration Act 1996

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Retrospectivity and the Rule of Law

ISBN13: 9780198252986
ISBN: 0198252986
Published: March 2006
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £120.00

This is a Print On Demand Title.
The publisher will print a copy to fulfill your order. Books can take between 1 to 3 weeks. Looseleaf titles between 1 to 2 weeks.

Retrospective rule-making has few supporters and many opponents. Defenders of retrospective laws generally do so on the basis that they are a necessary evil in specific or limited circumstances, for example to close tax loopholes, to deal with terrorists or to prosecute fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from 'corrective' legislation to 'interpretive regulations' to judicial decision making.

The search for a rational justification for retrospective rule-making necessitates a reconsideration of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order.

This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectivity. In his analysis Dr Charles Sampford asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law was discoverable at the time the action was performed.

The book goes on to suggest that although the strength of this 'rule of law' argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when analysis of the rule of law may provide the foundation for the application of retrospective laws.

  • The book has a unique focus entirely on retroactivity, a subject normally dealt with only as a subset of constitutional law
  • The book touches on some very topical areas, such as the use of retroactivity in the fight against terrorism. Highly controversial current issues, eg: Guantanamo Bay detainees, Patriot Act etc
  • The book has a very wide readership potential, retroactivity is a controversial constitutional and ethical issue across UK and USA especially, and Australasia and Canada also.

Constitutional and Administrative Law, Statutory Interpretation and Legislative Drafting
1. Defining Retrospectivity
2. The Rule of Law
3. Arguments Against Retrospective Law
4. Retrospective Legislation
5. Retrospective Judicial Law-Making
6. Justifications for Retrospective Law
7. Conclusions and Consequences for the Rule of Law