Samuel Beswick, ‘Prospective Overruling Offends the Rule of Law’

The impressive fifth edition of Joseph on Constitutional and Administrative Law (Thomson Reuters, 2021) reaffirms Professor Philip Joseph’s belief that ‘prospective-only relief remains an untapped option in judicial review’. This supposed option entails ‘limiting the retrospective effect of judicial decisions’ that ordinarily applies to case law (Chamberlains v Lai). Joseph contends that this unorthodox doctrine ‘work[s] practical justice’ on the basis of views he set out in ‘Constitutional Law: Prospective Overruling’ (2006) New Zealand Law Review 138. In that article, Joseph advances three claims: that the retrospective effect of judicial decisions is ‘perplexing[ly]’ premised on the ‘grand fiction’ of the declaratory theory of adjudication; that the ‘orthodox legal method’ of judges overruling rules with retrospective effect ‘offends the concept of the rule of law’; and that the solution to this perplexing problem lies with the doctrine of prospective overruling, which courts should liberally employ: prospective overruling should not be ‘an exceptional recourse for special and deserving cases only’ since ‘[a]s a general prescription, legal change should be prospective’. Similar sentiments are expressed in J Wall ‘Prospective Overruling – It’s about Time’ (2009) 12 Otago Law Review 131 at 131-132, 140 and S Laws ‘How to Address the Breakdown of Trust Between Government and Courts’ (Policy Exchange, 2021) 44.

These are dangerous claims. The declaratory theory is instructive not as “an historical explanation” but as a statement of the judicial responsibility to say what the law is …

Beswick, Samuel, Prospective Overruling Offends the Rule of Law (September 1, 2021). New Zealand Law Journal, pp 261-262, 267, 2021.

First posted 2021-12-02 14:50:05

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