Retroactivity
Encyclopedia
Retroactivity in law
is the application of a given norm to events that took place or began to produce legal effects, before the law was approved. Most countries are guided by the general principle of irretroactivity of law, which severely restricts this kind of ex-temporary application.
Until the middle of the 20th century, common-law systems in the United States operated on the premise that the law was natural
and the courts only found the law. This presumption led to all decisions being retroactively applied to all prior cases that involved the issue in question. However, with the development of legal realism
and the proliferation of legislatively enacted law, the courts shifted to a role of interpreting law that had been "made" rather than a role of "finding" natural law. Complete retroactivity was abolished by the Supreme Court in Griffith v. Kentucky, 479 U.S. 314 (1987).
Currently in the United States there are four forms of retroactivity (or preclusion of retroactive application) when a new rule is developed on appeal:
In many countries, including Mexico
, there is an exception to the rule of irretroactivity in criminal
or penal law
. Mexico recognizes the irretroactivity of law as a general principle; however, when it comes to penal law, the law itself states – and has done so since 1857 – that the laws can only be applied retroactively, if the law that was in vigor when the crime took place is more favorable to the processed person, or said person chooses to have that law applied to him.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
is the application of a given norm to events that took place or began to produce legal effects, before the law was approved. Most countries are guided by the general principle of irretroactivity of law, which severely restricts this kind of ex-temporary application.
Until the middle of the 20th century, common-law systems in the United States operated on the premise that the law was natural
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and the courts only found the law. This presumption led to all decisions being retroactively applied to all prior cases that involved the issue in question. However, with the development of legal realism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
and the proliferation of legislatively enacted law, the courts shifted to a role of interpreting law that had been "made" rather than a role of "finding" natural law. Complete retroactivity was abolished by the Supreme Court in Griffith v. Kentucky, 479 U.S. 314 (1987).
Currently in the United States there are four forms of retroactivity (or preclusion of retroactive application) when a new rule is developed on appeal:
- Rule applies only to prospective cases
- Rule applies to the case at hand as well as prospective cases
- "Pipeline retroactivity" - rule applies to case at hand as well as all cases currently being tried or appealed
- Rule has complete retroactive effect, including on cases in which final judgment has already been entered
In many countries, including Mexico
Mexico
The United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
, there is an exception to the rule of irretroactivity in criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
or penal law
Penal law
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...
. Mexico recognizes the irretroactivity of law as a general principle; however, when it comes to penal law, the law itself states – and has done so since 1857 – that the laws can only be applied retroactively, if the law that was in vigor when the crime took place is more favorable to the processed person, or said person chooses to have that law applied to him.