Pravnik Nos. 5-6/2015

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Number 3-4/2015
Retroactivity and the Nature of Law
Pravnik, Ljubljana 2015, Vol. 70 (132), Nos. 3-4, pp. 171-192
UDC: 340.132.3

The paper argues that the most adequate understanding of retroactivity steers clear of two extreme positions. The first position considers retroactivity to be impossible, since law could not really be effective for the past. The second claims that retroactivity might be ineffective but is from the legal point of view unobjectionable. The intermediate position accepts that the law is operative in a sphere where natural laws (such as the passage of time) do not apply, but insists that law has to remain faithful to its purpose. The law's purpose is to guide human behaviour. Retroactivity is therefore inherently problematic as it limits human autonomy and infringes upon personal dignity. The paper also draws distinction among several aspects of retroactive effect: (i) retroactivity stricto sensu describing laws which purport to have become operative before their entry into force, (ii) retroactiovity lato senu describing laws operating for the future but pertaining to already completed events, and (iii) retrospectivity describing law operating for the future and regulating an already ongoing legal relation. The paper tries to expose the close connection between our understanding of law and its purpose on the one hand and the concept of retroactive operation on the other.