Abstract
When earlier decisions are overruled this operates retrospectively, with the effect that it infringes the principle of legal certainty by upsetting previous arrangements made by a party to a case in accordance with long-standing precedents established previously by the courts. Against this background, a number of jurisdictions have had to deal in the recent past with the prospect of introducing to their own systems the well-established US practice of prospective overruling, whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function, coupled with the practical difficulties attendant upon such a practice.
This opening chapter is an attempt to provide some answers to these issues through jurisprudential and comparative analysis. The great reservoir of foreign legal experience furnishes theoretical and practical ideas from which national judges may draw knowledge and inspiration in order to be able to devise a rational method of dealing with such time aspects when they give their decisions.
This report was also published in Steiner, Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions, Springer, 2015, pp. 1–23.
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Notes
- 1.
Legal certainty is a multifaceted concept which includes aspects such as the non-retroactivity of law, the protection of legitimate expectations, the fact that statutory law should be precise, clear, accessible and known in advance by citizens. The principle of legal certainty is recognised by the majority of European legal systems including the European Court of Justice (Defrenne v. Sabena, 1976) and the European Court of Human Rights (Marckx v. Belgium, 1979). Academic writing on legal certainty in the context of EC and EU laws includes Raitio, J. (2003) The Principle of Legal Certainty in EC Law. Springer.
- 2.
The expression ‘prospective overruling’ will be used throughout the discussion, broadly meaning prospective operation of judicial decisions, including constitutional invalidation of legislation.
- 3.
For a detailed account of early American literature see, Levy, B. H. (1960) Realist Jurisprudence and Prospective Overruling. The University of Pennsylvania Law Review, 109:1, 1–30.
- 4.
See, Freeman, R. H. (1918). The Protection Afforded Against Retroactive Operation of an Overruling Decision. 18 Colum. L. Rev., 230.
- 5.
Great Northern Railway Co. v. Sunburst Oil & Refining Co, 287 U.S. 358 (1932). See also Cardozo, B. N. (1921). The Nature of the Judicial Process, Yale University Press, esp. pp. 142–49.
- 6.
See Lord Devlin. (1976). Judges and Lawmakers. Modern Law Review, 39:1, 1–16.
- 7.
Precedents being less certain in the civil law than in the common law is not a new claim. See Roubier, P. (1960). Le Droit Transitoire (Les Conflits de Lois dans le Temps). Paris: Dalloz &Sirey, at p. 26; also, Goodhart, A. L. (1934) Precedent in English and Continental Law. The Law Quarterly Review, 40-65, at pp. 58-59, who argues that in common law jurisdictions there seems to be a stronger reluctance to abandon precedent. For Goodhart, in the common law tradition, ‘the most important reason for following precedent is that it gives us certainty in the law’. ‘It is better that the law should be certain than that every judge should speculate upon improvements in it’ (quoting the Earl of Halsbury L.C. in London Street Tramways Co v. London County Council [1898] A. C. 375).
Note, however, that today overruling may be more easily identifiable in civil law systems when changes in case law are decided in a full chamber. A superior court may decide to sit in full if the issues raised are considered to be of exceptional importance. See the example of the Czech Supreme Court in Kuhn, Z. Towards a Sophisticated Theory of Precedent – Prospective and Retrospective Overruling in the Czech Legal System in Steiner, E. (2015) Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions. Springer, p. 146.
- 8.
Blackstone, W. (1765). Commentaries on the Laws of England. 1, pp. 69-70. Against the declaratory theory see, Lord Reid. (1972). The Judge as Law Maker. 12 Journal of the Society of Public Teachers of Law, 22-29, at 22 : ‘There was a time when it was thought almost indecent to suggest that judges make law-they only declare it…but we do not believe in fairy tales any more’. The declaratory theory has been rejected in some common law based legal systems such as Singapore. See the comments made on the 2010 Court of Appeal judgment in Review Publishing Co Ltd v Lee Hsien Loong by Chan, G.K.Y. Prospective Overruling in Singapore: A Judicial Framework for the Future? in Steiner (2015) idem, p. 364. At the other end of the spectrum is Australia where the declaratory theory remains persuasive to this day. See Justice J. Douglas and al. Judicial Rulings with Prospective Effect in Australia in Steiner (2015) idem, p. 351.
- 9.
This is discussed further in Sect. <InternalRef RefID="Sec7"2.3</InternalRef> below. One of the most emphatic attacks against prospective overruling seen as a device which ‘turns judges into undisguised legislators’ is by Lord Devlin (1976), op cit at 6.‘Courts in the United States have begun to circumvent retroactivity by the device of deciding the case before them according to the old law while declaring that in the future the new law will prevail…I do not like it. It crosses the Rubicon that divides the judicial and the legislative powers’. See also the rejection of prospective overruling by the High Court of Australia in Ha v New South Wales [1997] HCA 34 on the grounds that it is ‘inconsistent with judicial power...’ and that ‘the adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power.’ Contrast with Lord Nicholls’ opinion in National Westminster Bank plc v Spectrum Plus Ltd and others [2005] UKHL 41 concluding (at 39) that prospective overruling can sometimes be justified as ‘a proper exercise of judicial power’.
- 10.
Cardozo himself thought there was no adequate distinction to be made between changes of rulings concerning statutes or common law. See Cardozo (1921), op cit at 5, pp. 148–149.
- 11.
For an excellent exposition on the forms of prospective overruling, see Lord Nicholls’ opinion in National Westminster Bank plc v. Spectrum Plus Ltd and others op cit at 9; see also a much earlier study by Fairchild, T. E. (1967-68). Limitation of New Judge-Made Law to Prospective Effect Only: Prospective Overruling or Sunbursting. Marquette Law Review, 51: 3, 254–270.
- 12.
Radio France SA, Cass. 2, 8 July 2004, D. 2004, 2956.
- 13.
The same solution was applied in similar circumstances two years later in the 2006 case of Le Provencal v. Mme Véronique X.
- 14.
In the Czech Republic, see Constitutional Court’s judgment of 5 August 2010 relating to the statutory limitation of a defamation claim; see also, Supreme Administrative Court, Gaudea v Czech National Bank 17 December 2007, both cited in Kuhn, Z. op cit at 7, pp. 156 and 158. See also the 1986 Argentinian case of Tellez commented upon in Rodríguez Galán, A. Judicial Rulings with Prospective Effect in Argentina in Steiner (2015) op cit at 7, p. 278.
- 15.
See in France, Court of Cassation, 9 October 2001, ‘l’interprétation jurisprudentielle d’une même norme à un moment donné ne peut être différente selon l’époque des fait considérés, et nul ne peut se prévaloir d’un droit acquis à une jurisprudence figée’; in Court of Cassation, 25 June 2003,‘la sécurité juridique ne saurait consacrer un droit acquis à une jurisprudence immuable, l’évolution de la jurisprudence relevant de l’office du juge dans l’application du droit’. In Argentina, the Sanchez judgment, commented upon in Rodríguez Galán A op cit at 14, p. 281, denies the appellant ‘any vested right to court decisions being maintained throughout the stages of a law suit.’ in response to the appellant’s objection to the retroactive application of a new precedent in his case. Similar declarations are common in Germany; the Federal Constitutional Court held in 2004 that the fundamental right of equality before the law under article 3 (1) of the Basic Law does not grant an individual entitlement to the continuation of a line of case law that the courts no longer hold to be correct. See Sagan, A. Changing the Case Law Pro Futuro in Germany – A Puzzle of Legal Theory and Practice in Steiner (2015) op cit at 7, p. 123.
- 16.
See the US case of Harper v. Virginia Department of Taxation, 509 US.86, 97 (1993) where selective prospective application was rejected on these very grounds.
- 17.
Chevron Oil and Co. v. Huson, 404 U.S. 97 (1971). Under the influence of Justice Scalia, a fervent advocate of a return to the Blackstonian declaratory model of adjudication, the Supreme Court has, since, retreated from prospective judgments in a series of 1990s decisions dealing mainly with federal law. See Harper, op cit. at 16. On these developments see Kay, R.S. Retroactivity and Prospectivity of Judgments in American Law in Steiner (2015) op cit at 7, p. 209.
- 18.
[2005] 2 WLR 1078, 1112, at 66; in the 1976 landmark case of Defrenne v.Sabena ECR 455, concerning the application of article 119 of the EEC treaty, the Court already conceded it would limit the temporal effect of its decision in view of the possible economic consequences of attributing direct effect to the provisions of article 119. It decided that’ the direct effect of article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim’ (at 75).
- 19.
Molfessis, N. (2005) Les Revirements de Jurisprudence. Rapport remis à Monsieur le Premier Président Canivet, Paris: LexisNexis.
- 20.
The remarks that follow are also relevant in the context of annulation of administrative decisions where, in order to avoid administrative chaos, the court may issue a declaration prospectively.
- 21.
See Kay, R.S. op cit at 17, p. 215.
- 22.
See Smith, L. Canada: The Rise of Judgments with Suspended Effect in Steiner (2015) op cit at 7, p. 254.
- 23.
See G. Chan op cit at 8 on Singapore, a jurisdiction where this very point has been widely discussed in academic writing.
- 24.
For example, in France, the 1958 Constitution, art. 62 provides that when a provision is declared unconstitutional following a challenge by a citizen in an ordinary court and its referral by the latter to the Constitutional Council (art. 61-1 of the Constitution), “it shall be repealed as of the publication of the said decision of the Constitutional Council or as of a subsequent date determined by the said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge (Une disposition déclarée inconstitutionnelle sur le fondement de l’article 61-1 est abrogée à compter de la publication de la décision du Conseil constitutionnel ou d’une date ultérieure fixée par cette décision. Le Conseil constitutionnel détermine les conditions et limites dans lesquelles les effets que la disposition a produits sont susceptibles d’être remis en cause) ».
- 25.
See further the decisions of the Federal Constitutional Court of Germany cited in Sagan, A. op cit at 15. Also, the Supreme Court of Canada in the Manitoba Language Reference case. See Smith L. op cit at 22. Suspensory declarations of invalidity are also known in Ireland. See Connolly, N. The Prospective and Retroactive Effect of Judicial Decisions in Ireland in Steiner (2015) op cit at 7, p. 27. In Venezuela, such constitutional rulings are referred to as deferred unconstitutionality and temporary or interim constitutionality’. See Rondon de Sanso, H. Judicial Rulings with Prospective Effect in Venezuela in Steiner (2015) op cit at 7, p. 327.
In some jurisdictions the power to suspend a declaration of invalidity and maintain the consequences of invalidated legislation is established by constitutional legislation itself. Such is the case of Belgium in article 8 of the 1989 Special Law on the Constitutional Court which states: “…Where the Court so deems necessary, it shall, by a general ruling, specify which effects of the nullified provisions are to be considered maintained or be provisionally maintained for the period appointed by the Court”. See further on this point, Verstraelen, S. and als. The Temporal Effect of Judicial Decisions in Belgium in Steiner (2015) op cit at 7, p. 88.
Suspension may also be designed in exceptional circumstances to delay for a short period the order for release of a person held unlawfully - but who poses threat to himself or others - in order to allow the authorities to remedy the illegality affecting the basis for the detention See for instance the Irish case of FX v Clinical Director of the Central Mental Hospital (2) [2012] IEHC 272 commented upon in Connolly, N. op cit.at 25, p. 44.
- 26.
Opinion of Advocate General Jacobs, case C-475/03, 17 March 2005, at 72-88.
- 27.
Both cases are examined in detail in Connolly, N. op cit at 25.
- 28.
The expression is used by Denham CJ in DPP v Jason Kavanagh, Mark Farrelly & Christopher Corcoran, [2012] IECCA 65.
- 29.
See Hogan J in FX v Clinical Director of the Central Mental Hospital (no2) [2012] IEHC 272, 21.
- 30.
Op cit at 9, 28.
- 31.
Boulanger, J. (1953). Jurisprudence. In Répertoire de Droit Civil. Paris: Dalloz.
- 32.
Boulanger, J. (1961). Notations sur le Pouvoir Créateur de la Jurisprudence Civile. RTDC 59, 417– 441.
- 33.
It may be added in conclusion on this point that changes in case law are known and commented upon just like new legislation and most agencies and individuals rely upon judicial decisions to arrange their affairs.
- 34.
See Sunday Times v. United Kingdom (1979), 2, EHRR 245 and Kruslin v. France (1990), 12, EHRR 547.
- 35.
Gény, F. (1919) Méthode d’Interprétation et Sources en Droit Positif. Paris : LGDJ.
- 36.
Pound, R. (1943). A Survey of Social Interests. 57(1) Harvard Law Review, 1-39; Ihering, R. (1913). Law a s a Means to an End. New Jersey: The Law Book Exchange Ltd (1999).
- 37.
Apart from the two methods suggested under the current heading, it is also possible to conceive of a system which focuses on the predictability and/or creativity of the new change. Thus, where the change of ruling was predictable, it is applied to the instant case and to future cases; on the contrary, where it was sudden, then purely prospective overruling is to be considered. In the same vein, where the court offers a new interpretation of an otherwise precise and clear statutory provision or established judicial rule, the change is to be applied to the case at hand; when the change relates to an open texture provision or amounts to a reversal of a settled case law, prospective overruling seems justified. The underlying rationale for the latter distinction is that the more creative an interpretation, the more likely temporal disruptions will be felt.
- 38.
In the U.S. under both Section 73 (2) of the Restatement (Second) of Judgments and Rule 60 (b) of the Federal Rules of Civil Procedure, parties may exceptionally challenge and be granted relief from a final judgment where there had been for instance a substantial change in the law following initial otherwise closed litigation. See Kay, R.S. op cit at 17, p. 225.
- 39.
Public policy also dictates that there be an end to litigation. Besides the need for finality, unlimited retroactivity of judicial rulings would produce chaos in the legal system.
- 40.
Cardozo (1921), op cit at 5, pp. 147–148.
- 41.
See National Reports in Steiner (2015) op cit at 7.
- 42.
However, retroactivity should not operate when defendant’s convictions have become final under prior precedent; amnesty laws can nonetheless provide relief in such cases.
The way courts deal with changes in criminal procedure is also problematic. To avoid the reversal of final criminal convictions of persons who have been incarcerated following rules of criminal procedure that have become illegal under new constitutional rulings (e.g. absence of counsel at a specific stage of the proceedings), with the attending disruption in the running of the administration of justice (high number of potential petitioners), courts tend to hold the new procedural rules non retroactive to convictions that have become final prior to the new ruling. Some have pointed out the inequity of this kind of selective prospectivity for those defendants who were unfortunate enough to have their conviction finalised before the new rule was announced. For further discussion in the context of the American legal system and jurisprudence, see Kay, R.S. op cit at 17, p. 230.
- 43.
This would perhaps be a more sensitive issue in legal systems where there is an entrenched bill of rights or a written Constitution.
- 44.
As an illustration, see the American Supreme Court judgment in Rogers v. Tennessee 532 US 451 [2001].
- 45.
In Roubier’s system examined in 4.3 this corresponds to survie de la loi ancienne (survival of the previous law).
- 46.
Roubier (1960) op cit at 7, pp. 24–25.
- 47.
Roubier, idem, at pp. 172–177.
- 48.
Zenati, F. (1990). La Jurisprudence. Paris:Dalloz, at p.154.
- 49.
[1964] A.C. 465.
- 50.
Friedmann, W. (1966). Limits of Judicial Law-Making and Prospective Overruling. 29 Modern Law review, 593, at 605. However, some forms of implicit overruling may be controversial. The marital rape judgment in PGA v The Queen delivered by the High Court of Australia in 2012 offers a good, albeit unusual, illustration of the adverse consequences of a judicial declaration that a common law rule had already been implicitly overruled at the time when the alleged offence took place.
- 51.
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
- 52.
[1972] AC 944, at 966.
- 53.
Idem, at 1026.
- 54.
Op cit at 9, 39-41.
- 55.
Cardozo (1921), op cit at 5, p. 161.
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Steiner, E. (2017). Judicial Rulings with Prospective Effects: From Comparison to Systematisation. In: Schauer, M., Verschraegen, B. (eds) General Reports of the XIXth Congress of the International Academy of Comparative Law Rapports Généraux du XIXème Congrès de l'Académie Internationale de Droit Comparé. Ius Comparatum - Global Studies in Comparative Law(), vol 24. Springer, Dordrecht. https://doi.org/10.1007/978-94-024-1066-2_2
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