Law is as law does: Revisiting retroactivity in common law jurisdictions
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Pour cette pr茅sentation, nous accueillons Jennifer Anderson, Universit茅 缅北强奸.
搁茅蝉耻尘茅
The strong presumption of prospectivity in statutory construction reflects well-established concerns with retroactivity on the bases of the rule of law, liberty, and reliance. Strikingly, common-law judicial lawmaking routinely exemplifies these problems, yet largely escapes criticism for its retroactivity. Arguments justifying this difference amount to variations on one theme: lawmaking is simply not what courts are, or should be, doing, and worrying about their decisions鈥� real-world retroactive effects is therefore beside the point.
I challenge this view. Not only do appellate courts make law, that is their primary function. Further, if judge-made law is law more than in name only, then certain logical consequences follow. Chief among these is that retroactivity (and the problems it creates) requires defending as much in judicial as in statutory lawmaking. My analysis suggests that such a defence is elusive; more radically, it also calls into question the precise relationship between lower and higher courts.
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