The Restrictions of Retroactive Legislation: Conception and Legal Challenges

Abstract

The article analyses understanding of establishing restrictions on legislators’ discretion to pass retroactive legal norms, thereby protecting subjects of the legal norms from too intense impact in the past dimension. Evaluation of retroactivity as a restriction on legislators’ actions is related to the fact that nowadays increasingly often there are appearing cases, when legislator implements amendments, impacting events that have been commenced in the past or that are fully completed. At the same time, neither legislator oneself, nor subjects of legal norms are aware of the cases, when legislator might have been exceeded legislator’s rights to interfere with the past dimension. Therefore, to comprehend restrictions established on passing retroactive legal norms, the article views historical development, as well as actual understanding of conception of retroactive effect.
The article looks at several complex aspects, which until nowadays have been unclearly and superficially researched and, therefore, have influenced understanding of retroactivity. For example, the article justifies why a legislator, outside the penal law, does not have to comply with the absolute prohibition of retroactivity that exists mainly in the criminal law, on prohibition to punish without a law “nulla poena sine lege”. Namely, although the principle stipulates an absolute prohibition to pass retroactive legal norms and is considered an independent general principle of law, the principle applies only to amendments implemented in the penal law.
In addition, the article reveals methodological problems related to both recognition of retroactivity and identification of its legitimacy. As regards the abovementioned, the article concludes that existence of retroactivity shall be mainly identified in cases, when a legislator has not included it in the content of a legal norm, and, therefore, for purposes of identifying retroactivity, comparatively complex legal methods have to be applied. However, methods implemented in the legal doctrine are discrepant and often cannot ensure a precise opinion on existence of the retroactivity.
Even if retroactivity is identified correctly, there is no consistent understanding of cases, when retroactivity could be considered legitimate. Namely, exceptions to prohibition of retroactivity implemented in various legal systems are so wide and comprehensive that only a close supervision of the aims, of which the regulation was passed with a retroactive effect, it is possible to avoid groundless using of public interest to justify retroactivity.