Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined and indivisible: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. When courts deliver novel judgments, it appears unfair and inefficient for their novel holdings to be applied to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique of ‘prospective overruling’. Utilising this technique, courts seek to change the law prospectively for future cases, while continuing to decide past disputes under the ‘old’ legal rule that was thought to apply at the time those disputes arose. This article challenges the claims that the exceptional juridical technique of prospective overruling is justified by values of stability, reliance, efficiency, dignity, and equality. These values, when properly understood, actually support rather than undermine the retrospectivity of judge-made law. This insight controverts the recent proposal in The Government Response to the Independent Review of Administrative Law to legislate in favour of judges adopting prospective-only remedies in judicial review proceedings: it is a proposal to legislate in favour of judicial activism. Prospective overruling is objectionable both as a matter of principle and policy.
About the Speaker
Samuel Beswick, Assistant Professor
Assistant Professor Samuel Beswick is a private law scholar with primary research interests in the areas of torts, unjust enrichment, limitations, remedies, and privacy. His current research concerns the temporal scope of judicial changes in the law. Dr. Beswick has published his research in leading common law journals, and has presented at workshops and conferences across North America and in the United Kingdom.
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