I Problems with Retroactive Rule-Making
Retroactive rule-making is applying a legal rule or law to conduct that has already occurred before the making of the rule. What makes the rules of a legal system legitimate is justice. People need to know the law and what it is so they can follow it.
Legal systems frown upon or may prohibit retroactive rule-making because it does not enable people to predict the legal implications of their actions or behaviour. The purpose of the law is it makes a person aware of the consequences of their actions which may change their behaviour depending on the consequences of the law.
J. Bentham said: “When your dog does anything you want to break him of, you wait until he does it, and then you beat him for it.” Bentham’s analogy to the ‘Dog Law’ illustrates the problem of retroactive rule-making that laws may be passed without knowledge of the conditions to which they are to apply then punish those who have violated the law without them knowing it. As J. Bentham further states: “Like a dog owner, a judge rules only after an action is done.” Bentham is illustrating the problem of retroactive rule-making in the sense that action is only done after, such as the making of a law or rule, for conduct that has already been done in the past. Bentham is criticising the fact that in Common Law and Civil Law systems wait for a violation to occur before rule-making, whereas laws should already be in place to prevent the conduct.
Furthermore, people cannot abide a law that is non-existent that occurred at the same time the action happened. Also, it is unfair to hold people accountable for a violation of the law when such a law did not exist when the ...
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...is not obvious from the plain language of Article 1832” whether to make one liable for damages for “every conceivable harm” or “harm that was reasonably likely to result”. Case 4 was slightly retroactive as the language in Article 1832 was unclear.
Civil court ruling in Case 4 differs from Cases 1-3, as the rulings in common law courts (Cases 1-3) were altered and additions were added to rulings of newer cases in regards to the Case 1 making one liable/not liable for damages. Whereas in Case 4 the ruling was decided on the meaning of the Code in respect to legislative history and parliament debates.
The law should be prospective rather than retroactive. As there cannot be a rule for every single case in advance, both legal systems and their courts engage in retroactivity. However, common law courts are more retroactive than civil law courts.
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