Retrospective Rule Making & The Rule of Law: Between Fairness, Morality and Constitutionality

Yossi Nehushtan & Megan Davidson

The rule of law has many, often incompatible meanings. Here we subscribe to Joseph Raz’s perception of the rule of law that concludes, in short, that the purpose of ‘the law’ is to guide people’s behaviour – and that the rule of law is a set of requirements that must be met in order for the law to be able to achieve the purpose of guiding people’s behaviour. Some may argue that this is an incomplete perception of the rule of law, but any meaningful perception of the rule of law concludes that either one of the purposes of the rule of law – or its only purpose – is to allow the law’s subjects to know what the law is and to act accordingly. This is why the rule of law requires, for example, that legal norms will be clear; that they will be published; and that the executive branch will not be allowed to ignore the law or pervert its purpose. This is also why the rule of law requires that legal norms will not apply retrospectively, as RRM fails, by definition, to guide people’s behaviour.

Retrospective rule making (RRM) is often described as ‘legislation which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past’. This common perception is only partly accurate as it ignores the complexity of RRM. There are in fact two types of RRM: RRM in the strong sense and RRM in the weak sense. In RRM in the strong sense we have a rule that changes the legal status or legal consequences of an act that was committed before the rule was created; or a rule that changes the legal status or legal consequences of a state of affairs that existed (and ceased to exist) before the rule was created. This is the common perception of RRM. In RRM in the weak sense we have a rule that changes the legal status or legal consequences of an act that has started before the rule was created, yet this is an ongoing act that is still being committed in the present and continues into the future; or a rule that changes the legal status or legal consequences of a state of affairs that existed before the rule was created – and continues to exist after the rule was created.

The problem with RRM in the strong sense is that it always fails to guide people’s behaviour. It changes the legal status or legal consequences of ‘things’ (acts or states of affair) that already happened and can’t be changed or be undone. RRM in the weak sense is as problematic as RRM in the strong sense in cases where it is impossible, extremely difficult or exceptionally costly to stop committing an act or to change a state of affairs that started in the past and continues into the present and the future. Both types of RRM are in clear violation of the core of any perception of the rule of law – to the extent to which they prevent the law from achieving its purpose – guiding people’s behaviour.

Read full article here.

Cite as: Yossi Nehushtan & Megan Davidson, Retrospective Rule Making and the Rule of Law: Between Fairness, Morality and Constitutionality, 2 Ind. J. Const. & Admin. L. 27-43(2018).



 

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