Retroactive rule making is when a legal rule is applied to a specific conduct that has already occurred. This results in a loss of fair opportunity to conform, to conduct, and avoid a correct punishment. Certain scholars, such as Bentham (1925) argue that specific cases tend to have retroactive rule-making in it; while others’ argue that there are holes in the legal system, which can then lead to retroactive rule-making.
Most legal systems frown upon, or even prohibit retroactive rule-making due to the trust citizens have in the legal system. The trust between the system and citizens help society function, and punish those who break the rules correctly and fairly. When the courts use retroactive rule-making, it breaks the trust the citizens …show more content…
Out of the four cases, only one was retroactive rule-making, which was case three. The ruling in case three could be considered fair if it was on its own, however since it the court used case one’s authority for their ruling, case three has retroactive rule-making. It has retroactive rule-making because the court says that the owner can only be found liable for harming an innocent bystander from the unnatural use of land on their property, if it was caused by them or by someone else acting with the owner’s permission. This ruling is different to what occurred in case one, as the court then ruled that an owner is liable for harming an innocent bystander from the unnatural use of land on their property. The owner can be found liable, even if they did not do it themselves, or another did with or without their permission. The court in case one never mentioned whether or not the person acting on behalf of the owner had their permission or not. It was only said that the owner can expect to be found liable for harming an innocent bystander for unnatural use of land. Therefore, if there was no retroactive rule-making in case three, X would be found liable for damaging Z’s property that was caused by the fire Y created on X’s property. While case three certainly has retroactive rule-making in it, it is not to the extent of the “Monday/Tuesday” and “tax” example. It is also not to the extent that Bentham
Most legal systems frown upon, or even prohibit retroactive rule-making due to the trust citizens have in the legal system. The trust between the system and citizens help society function, and punish those who break the rules correctly and fairly. When the courts use retroactive rule-making, it breaks the trust the citizens …show more content…
Out of the four cases, only one was retroactive rule-making, which was case three. The ruling in case three could be considered fair if it was on its own, however since it the court used case one’s authority for their ruling, case three has retroactive rule-making. It has retroactive rule-making because the court says that the owner can only be found liable for harming an innocent bystander from the unnatural use of land on their property, if it was caused by them or by someone else acting with the owner’s permission. This ruling is different to what occurred in case one, as the court then ruled that an owner is liable for harming an innocent bystander from the unnatural use of land on their property. The owner can be found liable, even if they did not do it themselves, or another did with or without their permission. The court in case one never mentioned whether or not the person acting on behalf of the owner had their permission or not. It was only said that the owner can expect to be found liable for harming an innocent bystander for unnatural use of land. Therefore, if there was no retroactive rule-making in case three, X would be found liable for damaging Z’s property that was caused by the fire Y created on X’s property. While case three certainly has retroactive rule-making in it, it is not to the extent of the “Monday/Tuesday” and “tax” example. It is also not to the extent that Bentham