A brief theory on the retroactivity of social case law

Abstract

The hegemonic thesis within civil law legal systems is that case law, as an expression of acts of pure application of law, is not subject to the non-retroactivity requirements of legal norms. Court rulings are seen as simply making norms say what they have always meant; therefore, judicial doctrine must extend its effects retroactively back to the commencement of the norm’s validity, even in the case of jurisprudence that restricts or limits individual rights, with the sole limits being legal certainty and legitimate expectation. We will see here that this theoretical proposal, developed from the coordinates of judicial subsumption, presents significant drawbacks, which are substantially reduced when adopting the minority but more realistic approach of judicial law-making—an approach in which case law, as a phenomenon of law creation, must be subject to the same non-retroactivity requirements that govern legal norms.