3. The sources of law: retroactive effects Flashcards
(10 cards)
What is retroactivity in law?
A law is retroactive when it applies not only to future events, but also to past acts or facts—that is, things that happened before the law entered into force.
Why is retroactivity generally avoided?
Legal stability: people should be able to trust the law as it was at the time of their actions.
Legal certainty: people need clarity and predictability about what is legal and what is not.
2 exceptions and principles: chronological criterion
Repealing an old law with a new one:
If a new law replaces an old one, the old law still applies to things that happened while it was in force.
So, there’s no retroactivity in this case.
2 exceptions and principles: hierarchical criterion
A law is declared invalid:
If a law is found unconstitutional or invalid, it’s treated as if it was never valid at all.
So it’s retroactively nullified—this does have retroactive effects.
Criminal Law: no crime without a law
a person cannot be punished for something that was not a crime at the time it happened.
⇒ So criminal laws cannot be retroactive if they create a new crime.
Criminal Law: the more lenient law
if a new law abolishes a crime or reduces the penalty, it does apply retroactively.
⇒ A person benefits from the more favorable law, even if the crime was committed earlier.
Codified Constitution
A written Constitution, adopted by a constituent power (like a special assembly).
This document creates the political system and defines fundamental rights.
This is typical of modern states (after the French and American revolutions)
Codified Amendments
Changes to the Constitution, made by a constituted power (e.g., Parliament).
They are limited and regulated by the rules in the Constitution itself.
Uncodified Constitution
Not written in one document.
Composed of statutes, customs, court decisions, and conventions.
Found in a few countries like the UK, Canada, Israel, etc.
Modern (Codified) Constitutions Include
Fundamental principles (like democracy, separation of powers)
Organization of powers (executive, legislative, judiciary; national and regional)
Rules for making laws (especially statutes)
List of citizens’ rights (civil, political, social)
