The right to protection from retroactive criminal law

The arguments against the principle of non-retroactivity

Previous Arguments in favour Up  Contents Nuremberg trials Next

If apologists for the principle of protection from retroactive criminal laws are few, then apologists for retroactivity are fewer still. Savigny makes the point that:

A new law is always enacted in the persuasion that it is better than the former one. Its efficacy, therefore, must be extended as far as possible, in order to communicate the expected improvement in the widest sphere.12
But he immediately rejects any suggestion that the expected improvement of a law should extend as far as acts which pre-date that law:
... the natural limits of this authority of a new law are indicated by the principle of non-retroactivity ...13

Williams points out that the principle of non-retroactivity is associated with the retributive theory of punishment, as opposed to the deterrent theory. If punishment is justified as a deterrent to future wrongdoing, then new laws can only apply prospectively. Unless the previous wrongdoer expected to be punished, the punishment would be useless as a deterrent. Furthermore, announcement of the change in the law should be sufficient deterrent to future wrongdoers; punishing previous wrongdoers would have no deterrent effect upon those future wrongdoers.

However, if punishment is viewed as society's retribution for moral wrongdoing, then retroactivity can be justified. As Williams puts it:

Morality can have no special exemption for those who "commit the oldest sins the newest kind of ways".14
This approach tends to suggest a wide role for retroactivity, a role which draws criticism:
... the adoption of retroactivity as a general principle is altogether inadmissible ... it is unjust ...15
But, accepting that retrospectivity has a role in the retributive punishment of wrongdoers does not mean that retrospectivity need be a general principle. Proponents of retrospectivity only argue for the making of retroactive laws in exceptional circumstances: in situations where the wrongdoer's acts or omissions were morally wrong, though legal at the time that they were committed, that is, where the wrongdoer has transgressed the "natural law".16

This argument is not much favoured amongst jurists because it smacks of arbitrary, and unpredictable, law-making. Yet, the case studies discussed below indicate that law-makers—judges and legislators—have been prepared to take a retributive approach to punishment by ensuring that their decisions or legislation have retrospective effect. In so doing, they have accepted that there is a role for the retrospective operation of criminal law in order to punish wrongdoers whose crimes, even if legal at the time, were always immoral.

Previous Arguments in favour Up  Contents Nuremberg trials Next

Copyright noticeValid HTML 4.0
Home page:  <>
E-mail:  <>
Last modified:  31 August 1989