The concept of retroactivity : its variations in the different branches of law

Abstract

The concept of retroacti vity has a deceptively theoretical content. The most irresistible temptation is to treat it as merely designating a particular mode of operation of the legal norm, i.e. the process whereby such norm can be made to apply to past situations, which are properly regulated by earlier norms dealing with the same subject matter. This outlook, in its insistence on limiting a theory of retroacti vity to a study of the relation between static, consecutive norms within a legal system, with reference merely to a given juridical situation or fact, tends to overlook the truth that the real core of the theory is NOT the legal system, but LAW ITSELF, viewed as a dynamic structure which is capable of determining the course of social and economic progress within society. The purely theoretical content is reflected in the analogy drawn by Savigny, according to which retro activity explores the juridical line of communication between two consecutive laws, just as private international law explores the points of intersection between contemporaneous legal systems. But, such an approach is irrsufficient: it still needs to be complemented by the sociological and personal 9ackground, which animates the concept under analysis. Indeed the very raison d'etre of a theory of retroactivity is to ensure a smooth evolution of social progress, free from any 'juridical leaps' that could impair rights acquired under old laws, enacted by the proper state-organ or authority.