The Clarity of Laws

  • 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. – Check more at Dentist Calgary
    • 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.
  • These situations concerned civil disputes. Criminal cases, different considerations apply. Recognised in cases involving overruling of precedents, eg where court construed a criminal statute not to apply to a certain form of activity and then later changes its mind. – if this is projected retrospectively, men who are walking free on streets would be branded as criminals.
    • Some say that different consideration apply to cases where court settles previously unresolved uncertainties in app of criminal statute and that such cases must be treated like civil case of A v B. Fuller> this is wrong,
    • Fuller suggest that principle ought to be recognised where if D should not be held guilty of crim where the statute was applied to his situation was so unclear that had it been equally unclear in all applications, it would have been void for uncertainty. – this would eliminate false analogy to civil suits

 

  • Most difficult problem of all: knowing when an enactment should properly be regarded as retrospective.
    • Simple case: statute wants to make criminal an act tht was legal when committed.  Most repulsive in criminal law.
    • Contrast case: tax law to impose ftax on financial gains realiszed in 1960 at time when such gains were not subject to tax.  May be unjust, but not strictly speaking retroactive.   But ordinary persons would say this is also retroactive and to argue it is otherwise is quibble.
    • Answer?: Look, men rely on law as it is all the time, tax, property, contract, etc. If all men always made secure against change, law would be ossified forever.
    • Counter: tax law different from contract – tax coax men into acting certain way, contract more guiding, more a tool.
  • State + subject relationship bit like a contract.
  • Not all of retro analysis is difficult and obscure.
  • As with the other 7 desiderata that make up  internal morality, difficulties and nuances should not blind us that it is not hard to recognize blatant indecencies, and don’t have to go as far as hitlerite Germany.
    • E.g Statute that said “anyone who has been convicted of crime of violence may not receive any firearms” ever. This over clever attempt was stricken down by the supreme court in Tot v United States.