An Examination of the Nature of the State. a Study in Political Philosophy
An Examination of the Nature of the State. a Study in Political Philosophy
Westel Woodbury Willoughby
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But what if it is ? What has this really to do with the question as to the effect of such decisions of the courts upon custom ? * It is, to be sure, a general principle of legislation that laws should not be retroactive in their effect, but this is a principle dictated by general considerations of justice, and not of necessity. There is no more inherent dif- 1 Elements of Jurisprudence, 6th ed. Pp. 54, 55. 2 Professor John Dewey in Pol. Sci. Quar. March, 1894, p. 47. 176 THE NATURE OF THE STATE... ficulty in the State establishing retroactive law, than there is in its creating law that shall be of only prospective application. That this is the case, is seen in the necessity of explicitly providing in our own written constitutions that neither Congress nor the State legislatures shall pass ex post facto enact- ments. In the case of legislatures not thus arbitra- rily limited, as, for example, the British Parliament, no judge would hold a retroactive act invalid if passed according to due forms and procedure.
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