Troubling Times: Intertemporal Law & Theories Of Approach To The Effects Of Unconstitutionality

• Author: Ciarán Lawlor
• Position: BCL, LLM (European Law), Barrister-at-Law
• Pages: 71-84

TROUBLING TIMES: INTERTEMPORAL LAW & THEORIES OF

APPROACH TO THE EFFECTS OF UNCONSTITUTIONALITY

Ciarán Lawlor*

A INTRODUCTION: INTERTEMPORAL LAW

Intertemporal law, which has its roots in public international law theory,1

has

been described variously as ‘the body of rules governing precedence between

discrete strata of law in force at different times at the same place’2, the law

‘regulating the conflicts between systems of law applying at different times’

and ‘the study of the effects of changes to law over time.’3 Whatever the

preferred wording, there can be little doubt that conflicts between laws

applying in different time periods can be compared with conflicts between

laws applying in different countries,4 thus the development of the name:

‘intertemporal law.’

Law changes not only from place to place but also from time to time.5 If

a court today finds the law to be X, what should happen in relation to the

many past occasions in which it has been applied6 as if it were Y?7 In its Final

Report of 1988, the Australian Constitutional Commission succinctly

identified the nub of the issue:

In legal theory, the court is declaring what the law is and has been.

In fact, the case may establish a new rule of law, but, because of the

theoretical assumption, it is deemed to have been the law before its

creation. This might, at times, produce unfairness or undesirable

social consequences. At other times, the existence of the

presumption may prevent a court from developing the law in a

manner thought desirable, because of the injustice that would

otherwise be done to persons who acted on the basis of a different

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* BCL, LLM (European Law), Barrister-at-Law. The author is a research student at the UCD

School of Law. He is grateful to both Dr Paul Anthony McDermott and to Prof David Gwynn

Morgan for their helpful comments on various drafts of this piece. Any errors are, of course,

the authors own.

1 In this regard, see Elias ‘The Doctrine of Intertemporal Law’ (1980) 74 AJCL 285; Higgins

‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 ICLQ 501.

2 Baade ‘Time and Meaning: Notes on the Intertemporal Law of Statutory Construction and

Constitutional Interpretation’ (1995) 43 AJCL 319, 325. Interestingly, Baade points out that

Intertemporal Law is necessarily the law of the forum and the present law of the forum, even

if it leads to the application of a past stratum of law.

3 Rodger ‘A Time for Everything Under the Law: Some Reflections on Retrospectivity’ (2005)

121 LQR 57, 60.

4 ibid 61.

5 Baade (n 2) 330.

6 I mean ‘applied’ in the broadest sense, defined to include situations where private actors

have acted on a common understanding of what the law was to be.

7 Higgins (n 1) 507.