Retroactivity of the Law

RETROACTIVITY OF THE LAW. - The CIC has adopted the principle of the non-retroactivity of law, establishing that leges respiciunt futura, non praeterita, nisi nominatim in eis de praeteritis caveatur (can. 10). This principle, common to every legal system, is one of those of intertemporal law that seeks to provide a criterion for the solution of cases in which a new legal norm, regulating a matter already subject to another regulation, finds itself faced with relationships that began under the old one and reach their completion under the new, or that, established under the old norm, assert their effects during the reign of the new.

Among modern canonists, whose attention has been drawn by the cited norms of the CIC and by those of can. 4, which expressly mentions the iura aliis quaesita by establishing that... integra munent, nisi huius Codicis canonibus expresse revocentur, someone has given the principle the value of an absolute limit to the efficacy of the norm. Someone else emphasizes that purpose of the law which is one of the many aids to which the interpreter must resort, but it presents the serious gap of not specifying how the interpreter should behave where the purpose is not clear; others, finally, have adhered to other and different theories. The truth is that every doctrine has a certain foundation and the key to the whole problem can be given only by taking from each theory its part of truth. In fact, first of all it is necessary to distinguish, in the so-called principle of the non-retroactivity of law, two fundamental aspects that must be kept well separate: the pre-legislative one, or de iure condendo, and the legislative one, or de iure condito. As for the first, it must be said that it is a question of an ethical limit - one of the many that are imposed on the conditor legum - and it is a problem of value that cannot be ignored by any legislator and especially by the canonical one; in fact, the authority that governs every society finds an ethical limit to its faculties of government in the good of its subjects, not only uti universi, but also uti singuli, in the sense that legislative enactments must not, except in the case where the common good itself requires it, harm the individual and the sphere of good that he has secured for himself by his conduct, in conformity with the precepts established by the legislator himself. Indeed, under this prejudicial aspect, Bartolus of Sassoferrato (In primam digesti veteris partem Commentaria, Venice 1585, tit. de iustitia et iure, l. omnes populi), resolving a very interesting case of a city that, after having granted tax exemption to those who immigrated into it, wished to revoke the provision also to the detriment of those who, enticed by the exemption, had settled there, spoke of a "quasi contract" between the subject of the law and those who enacted the law, setting forth a concept entirely in conformity with the concept informing the principle of the non-retroactivity of law. Under the other aspect, on the other hand, the principle, insofar as it is a directive for the one who must apply the law, consists entirely in establishing which is the law governing a concrete legal relationship that extends over time, and it is a problem of fact or, better, of positive law.

Even under the aspect of positive law, however, the problem under examination must not be confused either with that of retroactivity, as efficacy ex tunc, quite frequent in transactions but not rare also in law, in the sense that a norm enters into force from a moment prior to its drafting, or to its promulgation, or even to that in which it is brought to the knowledge of the subjects. Indeed, in this regard, the very retroactivity of the merely interpretative law established by can. 17 CIC has nothing in conflict with the general principle of non-retroactivity, but fits into it without even constituting an exception.

Since law is above all the rule of the act, it must precede the act and not follow it. In this lies the reason for those institutions, such as the publication of laws and the vacatio, by which the norm takes effect after the necessary conditions have been put in place for the norm to come to the knowledge of its recipients.

A norm that draws its effects from a moment prior to that of its promulgation is retroactive, just as a transaction is retroactive whose effects go back to a moment prior to that of its stipulation; but this retroactivity, known to the legislator and indeed expressly provided for in the matter of the more favorable penal law (can. 2226 § 2), has nothing to do with the retroactivity excluded by can. 10. When the judge applies the more favorable norm, which by hypothesis may also be that of the moment in which the crime was committed and not that in force at the moment in which the accused is judged, it cannot be said that he does this by reason of the principle of non-retroactivity. When, on the other hand, one speaks of a principle of the non-retroactivity of law, one means simply that the legislator, placing such a norm among those of positive law, intended to refer to the prejudicial principle and to transfer it into the legislative system, while reserving to himself — nisi nominatim... de praeteritis caveatur, he himself said — the most complete formal freedom in laying down norms and in delimiting their efficacy with regard to time.

Since every law is issued insofar as the legislator has deemed it necessary to satisfy a requirement of the social order, that order may also justify the regulation of relationships established before the law entered into force. To the same legislator, however, is reserved the judgment on the advisability of regulating those relationships as well, and for the interpreter the problem is thus reduced to an interpretation of the will of the legislator and therefore of the will expressed in the norm.

Starting from this fundamental premise, it may be that the legislator lets it be understood what the practical application of the norm must be, perhaps establishing that it must exercise its influence also on relationships that arose in the past. In this case the concrete norm may be retroactive even if the legislator does not say so nominatim, it being sufficient that the retroactivity can be inferred from the content of the new norm, although in many cases the CIC has used the formula non obstante quolibet privilegio, or reprobata quocis contraria consuetudine.

On the opposite side, it may be that the legislator uses a formula that leaves no doubt about the non-application of the norm to relationships already established, as when he established that nullum patronatus ius... constituit in posterum valide potest (can. 1450 § 1) or that ut quis in parochum valide assumatur, debet esse in sacro presbiteratus ordine constitutus (can. 453 § 1). In both the hypotheses made, it can be said that a true problem of the non-retroactivity of law does not exist from the juridical point of view.

But there is a third hypothesis, namely that the legislative norm presents uncertainties as to the precise determination of its sphere of validity. Then, among the various aids the interpreter has for arriving at the discovery of the legislator's intention, there is that of holding that, in the light of those prejudicial criteria mentioned, the legislator intended to regulate the future and not the past. The scope, that is, of the principle examined in can. 10 is nothing other than the reaffirmation in the positive field of the fundamental generic program that the legislator has set for himself in issuing legal norms, so that, where otherwise the interpreter fails to understand the will of the law, he must remember this program and hold, by legislative obligation, that the new norm must not regulate past relations. It is only at this point that the practical problem arises of establishing what "r. of the law" means for the purpose of giving application to the principle of non-retroactivity willed by the legislator. Then all the doctrines mentioned come into play, and the case law, if numerous, is unanimous in holding that the validity of a transaction must be assessed in accordance with the prescriptions in force at the time when the transaction itself was carried out.

The problem is more delicate where the new law is not faced with relations already exhausted, but with relations pending, whether because it is a composite fact of which only some of the constituent elements have occurred, or because it is a fact that is perfected only through the passage of a determined period of time, or because a relation already validly arisen prolongs its execution even into the time subsequent to the promulgation of the new law. In the first two cases doctrine has given a satisfactory solution, holding that in cases of pendency deriving from non-completion of the relation the efficacy of the new norm is made explicit. More difficult, on the other hand, is the solution where the so-called relations of successive performance are concerned, but here, given the centuries-old canonical practice, one must hold that the only criterion that can be called in aid is that of the acquired right (ius quaesitum), adopting it, however, not in antithesis to the objective criterion of the completed fact, as some canonists have claimed to do, but as a complement to it and its integration.

Can. 4, establishing respect for the acquired right (v.) - and which constitutes a transitional norm for the internal order, just as can. 3 established such respect for the external order - has a different value from the norm of can. 10, inasmuch as the latter holds for all legislation, whereas the former limits its efficacy to the ambit of the CIC. But this does not prevent the two provisions from being integrated as follows: "laws concern the future and are not retroactive, that is, they do not injure rights already acquired before they entered into force."

Mario Petroncelli