The Issue Of A Retroactive Legislation Essay

The Issue Of A Retroactive Legislation Essay

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A Retroactive legislation is a clear indication of Austin’s account of sovereignty, whereby the power of the sovereign of Albion cannot be legally limited. Quintessentially, John Austin argued that constitutional laws are ”positive morality that the sovereign may disregard” . Thus, it appears that the sovereign need not comply with the Albion’s Convention of Rights. Per contra, one may wish to argue that Austin’s theory, whilst to an extent applicable in the United Kingdom, fails to account for constitutional democracies such as the United States where it is profusely clear that the sovereignty is indeed limited . Thus, it is debatable whether Austin’s theory and its applicability to this case scenario would outweigh the arguments presented against Jim’s defence.
The reference to ‘pyramid of law’ strongly suggests Kelsen and his concept of hierarchy of norms. For Kelsen, the constitution draws its validity only from the highest presupposed Grundnorm . Albeit, one may wish to argue that the retroactive norm need not be constitutionally correct, so long as it is Grundnorm-compatible, the perhaps stronger argument which is more in line with Kelsen’s view, is that the constitution which is positioned higher in the hierarchy will take precedence when laws are at conflict and thus invalidate the retroactive norm.
Whilst for Austin ‘the sovereign makes all the laws, for Hart the rules make the sovereign’ . Thence, since Albion has an ‘accepted constitution’ it constitutes part of the rule of recognition which determines the validity of law; with Hart advocating that “in some systems of law, as in the United States, the ultimate criteria of legal validity might explicitly incorporate […] legal constitutional restraints” . Thence, it ...


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...ish to advocate that albeit they have experienced a certain degree of hostility they are certainly not the least advantaged group in the society. Sequitur the application of the Critical Race Theory is also limited in such circumstances. The retroactive legislation and the exemption of the richest citizens would be best described by Marx and his theory of ‘laws of the bourgeoisie’, as there are the interests of the ‘most powerful class’ in the society that would be represented by the law .

Ultimately, the cornerstone of the liberal democracy of Albion, ie the equality before the law, need not be sacrificed, as the hostility shall not be used to excuse the rich citizens of Albion from paying due taxes. Perhaps, as Finnis would argue, this is what ‘the common good’ requires and what the natural lawyers per se would advocate as being the only just and fair solution.

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