Ex post facto legislation is regulation in a style which usually prescribes a negative sanction with punitive consequences in law for an action per-formed prior to the law’s coming into force.
There is a technical, pragmatic, and, at the same time, deeply moral question behind the decision as to whether it is allowable and whether it is worthwhile. For a long time law had permitted this; jurisprudence could only conclude that the retroactive effect of a rule is not excluded by any legal assumption.1Its validity cannot be disturbed by the fact that it decla-res an act to have been a crime after the fact.2
A decisive answer was first given on the European continent when crimi-nal procedure was surrounded with legal guarantees. Recognition of the principles nullum crimen sine lege [no crime without legislation] and nulla poena sine lege [no punishment without legislation] expressly interdicted making a deed punishable or meting out a penal sanction without a prospective statutory decree. Some early modern constitutions excluded retrospectivity with moral overtones, for example, the Norwegian Constitution, and the 1784 New Hampshire Constitution:3“Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or for the punish-ment of offences.” The German Constitution [Grundgesetz] restricts this prohibition and limits it exclusively to substantive criminal law.4Moreover, German constitutional jurisprudence limits it further to cases no longer under adjudication, distinguishing the original from the nonoriginal
* In its first version, ‘Ex post facto Legislation’ in The Philosophy of LawAn Encyclopedia, ed. Christopher Berry Gray (New York & London: Garland Publishing 1999), pp. 274–276 [Garland Reference Library of the Humanities 1743] & <http://www.bookrags.com/tandf/
ex-post-facto-legislation-tf/>.
1 Felix Somló Juristische Grundlehre(Leipzig: F. Meiner 1917) xv + 556 pp. at p. 302.
2 David Lyons Ethics and the Rule of Law(Cambridge: Cambridge University Press 1984) x + 229 pp. on p. 76.
3 New Hampshire Constitution (1784) in <http://www.nh.gov/constitution/billofrights.html>, Part I, Article 23.
4 German Constitution [Grundgesetz für die Republik Deutschland in <http://www.ge-setze-im-internet.de/bundesrecht/gg/gesamt.pdf> resp. <http://www.bundestag.de/interakt/
informationsmaterial_alt/fremdsprachiges_material/downloads/ggEn_download.pdf>]
(1949), Article 103, Paragraph 2.
retroactive effect. As to Common Law, analytical examination of the law embodied in precedents has proven long ago that judicial decisions which create a decision rule have an ex post factoeffect as well.5
Theoretically, since it is a means of social engineering, law is mostly prospective and makes use of regulation that links legal consequences to future events. As a program for social reform, trying to influence with pro-hibition and repression is less successful than offering a model for be-haviour that includes advantages because of being surrounded by positive sanctions.
Modern formal law is primarily the means for mediating relationships toward a network of ascriptions. Thus, it is of primary importance to pro-vide regulations providing normative determination for behaviour. A se-condary consideration is that inasmuch as the regulation is kept secret and does not become cognisable or available or bears a retroactive effect, it will not have the chance to influence the behaviour law seeks.
Since the debate between H. L. A. HARTand LONFULLERas to the con-flict between HITLER and the SA [Sturmabteilung] for murdering its lea-ders in Nazi Germany,6Anglo–American legal thought has seen legislation with retroactive effect as a moral dilemma and, according to ROBERT
SUMMERS, has made it a precondition that “the citizen will have a fair opportunity to obey the law”.7 Overuse and abuse of a tool, however, is never the fault of the tool. According to FULLER, the same technical means can be used “to cure irregularities of form” under special and unavoidable circumstances.8
This question was dramatically raised after World War II when, prepar-ing for the Nuremberg and Tokyo trials, the victors had to consider retro-spective prosecution and indictability for actions that were justifiable
5 John Chipman Gray The Nature and Sources of the Law 2nd ed. [1921] (New York:
Macmillan 1948) xviii + 348 pp. on pp. 89–101 & 218–233.
6 H. L. A. Hart ‘Positivism and the Separation of Law and Morals’Harvard Law Review 71 (1958) 4, pp. 593–629.
7 Robert S. Summers Lon L. Fuller(London: Arnold 1984) xiii + 174 pp. [Jurists: Profiles in Legal Theory] at p. 37
8 Lon L. Fuller The Morality of Law(New Haven:Yale University Press 1964) viii + 202 pp.
[Storrs Lectures on Jurisprudence, 1963] on p. 54 and Martin P. Golding ‘Retroactive Le-gislation and Restoration of the Rule of Law’ in Jahrbuch für Recht und Ethik/ Annual Review of Law and Ethics1 (1990), pp. 169–192 {with abstract in <http://www.str2.jura.uni-erlangen.de/
hruschka/JRE/vol01/al-goldi.htm> & reprint in his Legal Reasoning, Legal Theory, and Rights (Aldershot & Burlington, VT: Ashgate 2007), pp. 239–262 [Collected Essays in Law]}.
under domestic (respectively, German and Japanese) laws in force at the time. As discussed by GUSTAVRADBRUCH, they had to choose whether to use regulations with retroactive effect, or to employ natural law over the positive law, the dilemma of the contradiction between a ‘statutory no-law’
[gesetzliches Unrecht] and the ‘supra-statutory law’ [übergesetzliches Recht].9 Recently, the collapse of Communism raised the burning question in Central and Eastern Europe as to whether the legal processing of deeds instigated by former Socialist states could finally begin or whether, because the passing of time had exceeded the time limits set by statutory decree, the long-persisting and cruel state crimes could avoid control by the rule of law. These acts ran against the penal codes applicable at the time but remained unprosecuted because of the state’s complicity in their formal exclusion from prosecution, in some cases by a specific classified decree.
The Hungarian legislator in 1991 held that the illegal institutionalisation of the state’s machinery to abet avoidance of official criminal prosecution notionally excludes the start of the “tolling” period.10 The Hungarian Constitutional Court rejected this by reason of its own doctrinal construc-tion of a “constituconstruc-tional criminal law”, that is, the primary need for legal security deriving from the constitutional principle of “the rule of law”.11 A few years later, German and Czech laws,12and the Czech Constitutional Court’s assessment of the latter13declared that lapse of time was a proce-dural question, which removed it from under the original prohibition against their retroactive force.
On the merits, however, neither law considered it justifiable to apply the limitation period, which presumes a rule of law, in conditions which actu-ally deny any rule of law. The Czech Constitutional Court decision unam-biguously declares:
19 Gustav Radbruch Rechtsphilosophie4thed. [1946] (Stuttgart: K. F. Koehler 1950) 391 pp. especially at pp. 34 et seq.
10 The Bill No. 2961 presented by MPs ZSOLTZÉTÉNYIand IMRETAKÁCSand voted by the Parliament in May 1991.
11 Hungarian Constitutional Court decision No. 11 on March 3, 1992.
12 The German Laws of March 26 and September 27, 1993 [Gesetz über das Ruhen der Verjährung bei SED-Unrechtstaten& Gesetz zur Verlängerung strafrechtlicher Verjährungsfristen], and the Czech Law No. 198 of July 9, 1993 [Zákon a protiprávnosti komunistického reˇzimu], respectively.s
13 Czech Constitutional Court decision No. 19 on December 21, 1993.
“If we interpret the time passed since the commission of these crimes as a prescription period [...] this would be equivalent to confirming the »legal security« which the perpetrators had from the very begin-ning of their activity, and which was actually incorporated into their official immunity from prosecution. The »legal security« of the perpe-trators, in this sense, would be equivalent to the legal unsecurity of the citizens [...]. Any solution different than this would inevitably mean that the regime of totalitarian dictatorship receives a certifica-tion for its »rule of law«; this would create a dangerous precedent for the future. More precisely, this would confirm that crime can go unpunished, if and insofar as it is committed in mass proportions, is well-organised, lasts for a long time, and falls under the protection of state authorisation.”14;15
14 Cf. in original fac simile in Coming to Terms with the Past under the Rule of LawThe German and the Czech Models, ed. Csaba Varga (Budapest 1994) xxvii + 176 pp. [Windsor Klub] on pp. 145–169.
15 In Hungary, only the National Credo serving as preamble to the new Basic Law (April 25, 2011) could introduce the position according to which “We reject the applicability of statute of limitations to the inhuman crimes committed against the Hungarian nation and its citizens during the reign of the national socialist and the communist regimes.”