Retroactivity and the Common Law

by Ben Juratowitch

Overview

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 examined 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.

'Ben Juratowitch not only gives an account of the operation of the presumption, but also teases out the policies which underlie the different rules. This is particularly welcome. Lawyers and judges often seem less than sure-footed when confronted by questions in this field. By giving us an insight into the policies, the author provides a basis for more satisfactory decision-making in the future.

...The author not only discusses the recent cases but examines the question in the light of authority in other Commonwealth jurisdictions and with due regard to the more theoretical literature. This is a valuable contribution to what is an important current debate in the law.

Happily, Ben Juratowitch has succeeded in making his study not only useful, but interesting and enjoyable.'

From the Foreword by Lord Rodger of Earlsferry

Product Details

ISBN-13:	9781841137612
Publisher:	Bloomsbury Academic
Publication date:	02/01/2008
Pages:	270
Product dimensions:	6.14(w) x 9.21(h) x 0.62(d)

About the Author

This book is substantially based on the doctoral thesis written by Ben Juratowitch while an Australian Rhodes Scholar at the University of Oxford. He is now practising in international arbitration at Freshfields Bruckhaus Deringer in Paris.

Table of Contents

Foreword v

Acknowledgements vii

Table of Cases xiii

Table of Legislation and International Instruments xxv

Introduction 1

1 Concepts, Labels and Limitations 5

A Introduction 5

B Retroactivity 6

C Retrospectivity 9

D Confusing Usage 12

E Problematic Usage 13

1 Waldron on Criminal Sentencing 13

2 Fuller on Tax Liability 16

F The Scope of this Book 17

G Illustrations of Conceptual Distinctions 17

1 Cases Relating to Contractual Rights 18

2 Cases Relating to Personal Status 21

H Conclusion 25

2 Historical Review 27

A Introduction 27

B General History and Statutory Construction 27

C Adjudicative Retroactivity 35

D Conclusion 42

3 Rationales for a General Presumption Against Retroactivity 43

A Introduction 43

B Certainty 44

1 The Meaning of Certainty 44

2 Certainty and Reliance 44

(a) The Case for Actual Reliance 44

(b) Evaluation of the Role of Actual Reliance 45

(c) Certainty and the Ability to Rely on the Law 47

3 Certainty and Autonomy 48

C Negative Liberty 50

1 Negative Liberty Generally 50

2 Deprivation of Security Relating to Past Events 50

3 Removal of an Actual Freedom 51

4 Negative Liberty and Criminal Law 52

(a) Nullum Crimen Sine Lege Antea Exstanti 52

(b) Nulla Poena Sine Lege Antea Exstanti 52

D Fair Warning 57

E Defeasibility 60

1 Introduction to Defeasibility 60

2 A General Principle of Fairness 61

3 Where Uncertainty is Inevitable 62

4 The Exceptional Nature of Retroactivity 63

F Conclusion 65

4 The Presumption Against Retroactivity in Statutory Construction 67

A Introduction 67

B The Nature of the Presumption Against Retroactivity 68

C Applications of the Presumption AgainstRetroactivity 71

D Fairness as a Determinant of the Applicability of the Presumption 76

E A Presumption of Variable Strength? 79

F Rebuttal of the Presumption Against Retroactivity 80

1 Express Words or Necessary Intendment 80

2 Validating Statutes 81

3 Importance of Subject Matter 86

G Detailed Studies 91

1 The Intertemporal Effect of the Human Rights Act 1998 (UK) 91

(a) Was Retroactivity in Issue? 91

(b) Treatment of the Presumption Against Retroactivity 93

(c) Applicability of the Presumption Against Retroactivity 94

(d) Fairness and a Presumption of Variable Strength 96

(e) Statutory Language 101

2 Retroactive Sentencing 102

(a) Article 7 of the ECHR and the Common Law Presumption Against Retroactivity 102

(b) The Common Law Presumption Against Retroactive Sentencing 112

(c) Retroactive Changes in Favour of the Defendant 115

H Conclusion 118

5 Adjudicative Retroactivity 119

A Introductory Matters 119

1 What is Adjudicative Retroactivity? 119

2 The Declaratory Theory 119

3 The Scope of this Chapter 121

B The Doctrine Of Precedent and Judicial Attachment to Existing Principle in Novel Cases 125

C The Marital Rape Cases 127

1 Outline of the Facts, Decisions and Issues 127

2 Foreseeability of Legal Change 130

3 Heinous Conduct 133

4 Changed Status of Women 136

5 An Illogical Immunity 136

6 Conclusions on the Marital Rape Cases 137

D Restitution of Money Paid under a Mistake of Law 138

1 The Facts and Issues in Kleinwort Benson v Lincoln County Council 138

2 Reasons for Retroactivity 142

E Private Law 143

1 The Creation of New Law without Overruling Prior Authority 144

(a) Existing Authorities in Disarray Making a Degree of Retroactivity Inevitable 144

(b) Ability to Rely on the Law not in Issue 145

(c) Gradual Development of New Law 146

(d) Moral Obloquy 150

(e) Use of Obiter Dicta to Signal a Change in the Law 151

2 The Creation of New Law by Overruling a Prior Authority 153

(a) Ability to Rely on the Law not in Issue 153

(b) Prior Authority Wrong in Principle 154

(c) Response to Changed Legal Circumstances 159

(d) Response to Changed Factual Circumstances 161

(e) Absence of Effect on Litigants before the Court 163

(f) Refusal to Overrule a Decision because of Potential Retroactive Effects 165

3 Overruling a Prior Judicial Interpretation of a Statute 166

4 Conclusions on Private Law 171

F Public Law 172

1 The Creation of New Law without Overruling Prior Authority 172

2 The Creation of New Law by Overruling Prior Authority 175

(a) Judicial Review of Questions of Law 175

(b) Judicial Review of Questions of Fact 177

3 Overruling a Prior Judicial Interpretation of a Statute 178

4 Conclusions on Public Law 182

G Criminal Law 183

1 The Creation of New Law without Overruling Prior Authority 184

(a) Judicial Response to New Factual Circumstances 184

(b) Perceived Immorality 185

2 The Creation of New Law by Overruling Prior Authority 189

(a) Prior Authority Wrong in Principle 189

(b) Retroactivity in Favour of a Defendant 192

3 Overruling a Prior Judicial Interpretation of a Statue 193

4 Conclusions on Criminal Law 196

H Overruling and the Age of a Decision 197

6 Prospective Overruling 199

A What is Prospective Overruling? 199

B The Status Quo 200

1 England 200

2 Australia 204

3 New Zealand 205

4 Canada 205

C Evaluation of Prospective Overruling 209

1 Inconsistency with the Proper Scope of the Judicial Function in Common Law Systems 209

2 Arbitrariness 209

3 Prospective Overruling of Decisions about Statutory and Constitutional Construction 214

D Conclusion 215

7 Conclusions 219

A Foundations 219

B Comparison of Cases of Statutory and Adjudicative Retroactivity 220

C Approaching Rebuttal of the Presumption 223

D Legislative and Judicial Processes 224

E Final Observations 225

Bibliography 227

Index 233