Andrew Burrows, ‘Common Law Retrospectivity’

At first blush, judicial law reform by development of the common law may be thought problematic because of its retrospectivity. However, the objections to retrospective laws are not as absolute as may be thought and they admit of exceptions even in respect of punishment under the criminal law. Provided judicial law reform is effected, in its traditional way, by the incremental articulation and application of principle – rather than by leaping forward in response to the policies of the day – retrospective development of the common law is not merely acceptable but essential. It is an important role of the judges, for which they are uniquely qualified, to refine principle in the light of new situations and attitudes. To deny judges that role, by treating the common law as static and calling on Parliament to intervene, is to misunderstand the strengths of an ever-evolving common law and to take an impoverished view of the judicial function.

Burrows, Andrew, Common Law Retrospectivity (January 30, 2013). Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (OUP, 2013) eds Andrew Burrows, David Johnston, and Reinhard Zimmermann, chapter 41.

First posted 2015-05-20 05:52:07

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