All in good time: temporal forms of public law decisions

ABSTRACT

Assessing when a legal entitlement begins and expires is necessary to make sense of the law. To this end, the law resorts to the following temporal slots: a present, which the law can regulate, and a past and a future that, to different extents, are usually outside of the law’s scope and command. Sometimes, however, past and future issues need a present regulation, and therefore laws with a backward or forward-looking projection are enacted. Global constitutionalism is traditionally at odds with an unlimited projection of the law in time and therefore is sceptical of retroactive and ‘ultractive’ laws. Still, the more moderate forms of retrospective and ‘ultraspective’ laws can usefully tackle public law decisions, since they inherently live in a mobile flow of time that rejects a strict division between past, present, and future.

KEYWORDS:

• Time
• rule of law
• global constitutionalism
• retroactivity and retrospectivity
• ultractivity and ultraspectivity

1. Introduction

The court hall was full when the European Court of Human Rights heard Silvio Berlusconi’s petition on a human rights violation: the former Prime Minister of Italy claimed that he suffered an injustice through the application of the new Italian anti-corruption law.¹ Indeed, Berlusconi had lost his seat in Parliament on account of this law due to a prior criminal conviction. He claimed that, this disqualification being substantially a criminal sanction, it should have been subject to the principle of non-retroactivity according to Article 7(1) ECHR. In the opinion of the Italian Government, conversely, the disqualification was considered to be an administrative law measure. Therefore, it could be applied to past acts, such as those committed by Berlusconi, even if actions predated the adoption of the law.

Should a law deprive citizens who have been sentenced for a particular offense of a legal entitlement (such as the right to be elected for a public office)? And who should be affected by this law? Everyone who has previously been sentenced? Only those sentenced when the law was already in force—such as Berlusconi? Or only those who committed the relevant acts amounting to a criminal offense after the law was enacted? Strict allegiance to the prohibition of retroactivity demands that we consider only the third option, since in the other two categories, the individual could not have relied on that law to guide their behaviour. Still, the application of the law to that second group of people, despite being backward-looking, does not seem to amount to a retroactive law.

In a landmark judgment, the German Federal Constitutional Court (partially) declared the Federal Climate Change Act unconstitutional, because it disproportionately allocated the burden of realising CO₂ emission reductions to future generations.² The Act demanded the lowering of greenhouse emissions to net zero by 2050, requiring a reduction equal to 55 per cent in greenhouse gas emissions compared to the 1990 levels by 2030.³ However, the law did not include climate targets post-2030, merely a requirement for the government to set annually decreasing emissions budgets post-2030. Several individuals and environmental associations considered the Act inadequate to mitigate climate change. According to them, the reduction of 55 per cent by 2030 was insufficient. Since the remaining reduction burden was unduly postponed until after 2030, this would jeopardise the rights of future generations.⁴ The Court agreed with this view, ruling that the law violated the complainants’ rights since it postponed the largest share of emission reductions to post-2030, and did not contain any provisions on how emissions were to be reduced after 2030. The Court had to engage with the fact that the people of the present have authority to rule over the present, but this present will, inevitably, impact future people.

Especially when dealing with goals that can only be achieved over time, the Court reasoned, the law’s effects will be spread out over several generations, generating legal obligations for the present towards the future.⁵ This inherently brings complications. On the one hand, by making climate protection a constitutional duty, the Court struck a balance about the future composition of interests and rights. Does this amount to judicial law-making—not only for the present, but for the future too? On the other hand, the Court held the legislation to be illegitimate, because it did not fairly consider future generations’ expectations. However, in a democratic context, should the primary ultimate goal not be to uphold the rights and accommodate the wishes of currently living people?

These two cases expose the problems and conflicting interests evident when it comes to the temporal scope of the law. The question of to what extent the law can rule the past and the future is governed by a complex legal architecture, made of principles and conflict rules, that determines the temporal scope of the law. Generally, the law does not rule the past, it rules the present and, as a default rule lacking the aim of eternity, the future. However, some issues remain unresolved, such as the limits of the law’s projection into the past and the future, and the convenience of these principles and rules when the law’s goals can only be met over time.

This article therefore aims to illustrate how different forms of law can operate in the temporal spectrum.⁶ As such, it is structured as follows: Section 2 addresses the ordinary temporal scope of the law, which is based on prospectivity, as shaped by the principles of global constitutionalism. Section 3 advances the claim that a different understanding of time can help make better sense of the law. Law may be backward-looking (retroactive and retrospective) and forward-looking (‘ultractive’ and ‘ultraspective’). Section 4 examines how temporal forms of law are particularly needed in public law, especially retrospective and ultraspective forms. The conclusion section sketches out how these forms can benefit global constitutionalism goals too.

2. The temporal boundaries of the law

The law, in establishing itself as an order, dictates which human behaviours are permissible during a certain period.⁷ Necessarily then, it resorts to time as a structural feature, determining when one period ends, and another begins.⁸ The temporal dimension implicates all of law’s functions. Legislators adopt forward-looking laws to regulate present and future people’s conduct, and occasionally backward-looking laws to address past behaviours. Administrative bodies translate today’s needs into policies and try to achieve coherence by balancing past and future actions. Judges make decisions based on past events and apply the laws according to interpretations which privilege their original or current meanings.⁹

All these activities rely on separate and identifiable periods: a present, where we might act, implies a past—where we generally cannot act and others acted. And it implies a future—where we mostly cannot act and others will.¹⁰ There are then clear categories of past and future, with a present in between. This chronological division assumes time to be a linear, progressive, invariable, and irreversible phenomenon. Time is assimilated to space, as something which can be filled up, diced up, compressed, or speeded up.¹¹ From this perspective, a time slot operates as a container in which events take place every single moment. These events can be contained in that time slot only.¹² These time slots—past, present, and future—provide structure to the succession of laws in time, as determined by the enactment and expiration of the law. The lawmaker, who shapes these time slots, can decide to fill them with content, or leave them vacant. This understanding of the law prevents the paradox of having legal events starting ab aeterno. It makes the task of law-making, enforcement, and adjudication easier, preventing legislators, law enforcers, and judges from dealing with causes, conditions, and effects of events back to the beginning of time. Thereby, the lawmaker can encode the complexities of reality into a single legal event in order to produce repeatable outcomes and can position the legal subjects in a predictable scenario.¹³

The lawmaker traditionally regulates this projection of the law over time by the principle of lex posterior. The principle is twofold: what the law provides now does not regulate the past, and it can always be reverted in the future. This feature of the law is synthesised in the principles of non-retroactivity of the law (the law does not apply to events that occurred before its enactment) and of non-ultra-activity of the law (the law does not apply to events that occurred after its abrogation).¹⁴ That is to say, the law does not rule the past and rules the future only insofar as it itself is not abolished. From the moment the law enters into force, its authority will rule over an aspect of life, and it is presumed that it will keep doing so in the future as well. This authority will cease only by means of another law and under the same lex posterior principle that gave binding effect to the now abrogated law. For this reason, the law has a default forward-looking effect, known as law’s prospectivity, and is also limited. This bundle of principles is, most of the time, applied to the legislative level. It is then always possible for the lawmaker, in the name of the principle of lex posterior, to make a retroactive or ultra-active law, thus derogating from those principles.¹⁵ However, the twin principles of non-retroactivity and non-ultractivity might also be enshrined in the constitutional text, thus barring the law’s unlimited temporal projection.

The other rule for solving a conflict between sources of law, the lex superior, commands that laws shall not contradict what is provided by the constitution itself. International covenants¹⁶ and national constitutions¹⁷ contain, for example, the principle of non-retroactivity in criminal affairs, to prohibit any legislation that imposes charges on individuals for acts that were not considered criminal when they were committed.

For those legal systems that rely on judge-made-law principles, the development of criminal law through judicial law-making is permissible only within the boundaries of foreseeability, which echoes the prohibition of retroactive laws.¹⁸ In doing so, these legal systems prevent (criminal) retroactive legislation,¹⁹ and, as a corollary, they impose the ultra-activity of the present (criminal) legislation. Usually, at the same time, constitutional texts impose retroactive legislation in the same matters by declaring that acts that were considered criminal by a law that has been abrogated will not be considered criminal anymore, thereby derogating from the general rule of non-retroactivity. Consequently, this also entails the non-ultra-activity of past criminal legislation. Regarding the future, since the general principle governing the law is a prospective one, even if limited, constitutions usually do not provide any insight into the forward-looking character of the law. Except for criminal cases, they generally allow a law to keep applying to facts that happened when they were in force despite being later abrogated, if provided so by the lawmaker.

The prohibition of operating on an unlimited timespan—a single and fluid stream of time on which the lawmaker can operate as they please—is globally recognised. Retroactive laws, as legal interventions that adjudicate the past, are considered exceptional; laws that purposely rule the future are generally vested in constitutional law, and only thereby is their projection over time acknowledged.²⁰ This global consensus on the limited temporal reach of the law is in line with the global affirmation of the values of rule of law, democracy, and human rights, and the advancement of global constitutionalism.²¹ These values provide, respectively, requirements, sources, and limitations to the discipline of the law. By regulating the law, they also constrain its temporal reach.

Concerning the rule of law, one of its tenets is that the law itself should comply with certain structural requirements, and, among them, the requirement that no law should be retroactive.²² The nature and rationale for the existence of this requirement are much debated.²³ In large part, it has been held to be necessary for controlling and directing individuals without infringing on their dignity.²⁴ It contradicts our understanding of the law, overturning what was the legal status of something that is now in the past. Governing today’s conduct with rules that will be enacted tomorrow jeopardises human dignity, since it is impossible for people to follow the rules laid down by law if those rules are retroactive. From this perspective, a retroactive law truly seems like a legal monstrosity.²⁵ There is also a certain understanding that the law should be knowable in advance and maintain stability across time.²⁶ By providing rules that are future-oriented and stable, the rule of law can stabilise expectations and make legal relationships enforceable.²⁷ Only if these time-related principles are followed is the legal system intelligible to humans, and therefore adept at regulating human action.²⁸

Unlimited projection of law into time is also at odds with today’s ideal of democracy: it is contradictory to legislate for people who are not more or not yet involved in the democratic decision-making process. Concerning the past, the mandate of the lawmaker is temporally limited, among other reasons, so that they cannot legislate retroactively to invade the mandates of past legislatures in the same way that they cannot bind future legislators.²⁹ Concerning the future, the law has no claim to be eternal validity for all people no matter at what point in time they are alive.³⁰ To the law, the past and the future are not dissimilar to distant, foreign provinces, inhabited by unknown people. It would be an imperialist act to rule on behalf of the past and the future. It is impossible to know the men of the past and the future in the same way that we do not know foreign populations, nor do we have the authority to rule over them. Extra-territorialism and extra-temporality align here. The issue is, therefore, to what extent current people can rule themselves, to what extent past rules might bind them, and whether their own rules bind future people.

The principle of the lex posterior resolves this issue through a compromise: the law of today might establish commitments for the future, but such commitments can always be reverted by the same people who have to respect them.³¹ For this reason, the law has a limited prospective effect, where ‘limited’ implies both a default rule and a precarious status’. The problem, exemplarily debated in the Jefferson-Madison correspondence,³² is that such precariousness might put at peril the very stability and endurance of a society. This can be framed as the conflict between democracy and constitutionalism.³³ With the advent of rigid constitutions, the compromise between the rule of today and the rule of the past, and so the conflict between democracy and constitutionalism, has been resolved in favour of the stability and endurance of certain rules that have constitutional rank. Being lex superior they evade the logic of lex posterior. Regarding the status of such rules, there is no (more) democratic decision-making, or it is made particularly difficult. For this reason, constitutions are often characterised as perpetual documents that reflect society’s aim of protecting itself against the risk of preferring short-term political passions, embedded in the rule of today, over long-term interests, sanctified in the rule of the past. Constitutions are, therefore, an attempt to regulate the future on behalf of the past. As such, they allow the past majority to set rules that will restrict future majorities’ wishes. This type of ‘temporal imperialism’ is considered necessary to achieve certain higher aspirations of the polity.³⁴ Global constitutionalism generally rejects a ‘pure’ form of democracy, where all the rules might be revised by current majorities: instead, it endorses legal orders that exhibit some kind of super-legislative rules that are outside the grasp of democratic decision-making.

Amongst these rules stand human rights. Human rights have that particular feature that they are considered acquired—at least in law in the books—once and for all. Their mutation can only be directed towards enlargement, be it in scope or content.³⁵ Human rights shine off the progressive aura that invited the hailing of democracy. Hope for a better future does not rely on democratic decisions: on the contrary, it is in the hands of judges providing evolving legal interpretations of rights. This is related to the increasing concern for the independence of the judiciary, ensuring respect of these rights.³⁶ According to this view, judges embody a legal power that confronts political powers, as iurisdictio against gubernaculum.³⁷ Judicial protection of human rights is heralded as a sort of common law-style constitutionalism, globally protected by international human rights charters and their courts. From the perspective of human rights constitutionalism, a legal setting that establishes human rights is better than any other. A global Paretian optimum on rights has allegedly been reached in a day of blazing glory for humanity, which the law must crystallise. The constitutional law scepticism vis-à-vis legal interventions is reinforced out of fear that democratic majorities might harm human rights. Being acquired once and for all, irrespective of the political turnout of the moment, human rights projection in time is geared in one direction, their expansion. Therefore, there is no backward-looking intervention in human rights that might compromise what has been achieved, and there is no future-looking interference that might jeopardise their evolution.

As such, global constitutionalism favours the ‘preservative’³⁸ effect of law’s temporal projection.³⁹ Rule of law, democracy, and human rights—taken together and despite the inherent tensions amongst them—foster a narrow understanding of law’s capacity. The law is bound internally by craftmanship requirements (rule of law), externally by the existence of insuppressible legal entitlements (human rights), and, as a matter of sources, by a counter-majoritarian institution (constitution) which ties and limits its source of power (democracy). There is not only a scepticism towards backward-looking intervention when it comes to modifying what has been established, but also a certain mistrust regarding future majorities as well. This combination of values imbues the law with the task of preserving a past as such.⁴⁰ The legal institutions of the present, including the temporal boundaries of the law, are then ‘preservative’ in the sense that they retain what is and what has been, and resist change.⁴¹

3. Different forms of law for different legal times

This institutional setting, purported by the law itself and ensured by global constitutionalism values, becomes somewhat strenuous when we immerse ourselves in the temporal fluidity of the human endeavour. This time conception is analytically convenient but does not necessarily grasp concreteness, and it fails to capture the multi-stranded temporality that legal governance must grapple with. By articulating a theory of temporality that separates and individuates time, the interconnectedness of events is lost. The complex dynamism of reality and the fluidity of time reject a one-directional temporal course. In particular, this setting cannot tackle the continuity of legal events, such as acts with long-lasting consequences and cross-generational legal issues.

A swifter conception of temporal boundaries can better express the dynamic of public law decision-making, which inherently lives in a mobile flow that is at odds with a strict division of past, present, and future. It might then be worthy to think about re-framing the scope of temporality in law: the decision to adopt either broad or narrow temporal periods, to produce unity or divisions in the timeline, is a human choice, connected to the politics of law.⁴² After all, past, present, and future are all legal constructs, juridically produced, and they have meaning and form according to changeable legal needs. Accepting this preliminary claim, that law makes time, allows us to better understand the directionality and opportunities in setting law’s time.⁴³

There might be issues, accomplished in the past, which still need a legal assessment in the present and there might be issues yet to come that require an assessment too, thus breaking the abstract categories of past, present, and future. Past, present, and future are all part of the inter-temporality of human existence, and so is the discipline of law. They do not exist as such: they are simply postulated as a reaction to the limited timespan of human existence.⁴⁴ The same human condition,⁴⁵ however, obliges us to acknowledge that past, present, and future are not separate elements, but rather like communicating vessels. Time flows from one vessel to another, but it is always the same substance and the same quantity. Spread over that quantity of time, legal commitments might be established, even if—for being effectively accomplished—they must begin from an already past moment or in a moment yet to be. Such understandings qualify time as a perduring and changeable moment: the past pre-exists the present, and since a past always exists, there is already a future. Therefore, the existence of a present anticipates the future and, instead of erasing it, it accumulates it. The past can only be remembered, and the future only imagined: but since we use our imagination for remembering the past, and our memory for imagining the future, the present can be only comprehended from the perspective of the past and understood because there is a future. Past, present, and future are therefore indivisible.⁴⁶ This is true also for the sake of the legal subjects operating over time. Crucially, it is always the present lawmaker who adjudicates simultaneously over the past, present, and future.

As such, the lawmaker is a multigenerational body, where all the generations assemble and become consubstantial, as the horizons of past and future collapse into an everlasting present. It must rely on and take into account past efforts and actions, as well as future expectations and rights. Similarly, within the purview of the subjects who operate in these time slots, the legal subject is born and reborn in eternal succession, always situated in the present. Individuals are placed in circumstances not purely of their own making; this means that the relations with future generations presuppose the relations with past generations. To the converse: it is impossible to relate to past generations without the anticipation of future generations. Time is, therefore, a fluid whole rather than a spectrum rigidly divided into parts.⁴⁷ Due to the fluidity of time, and the absence of barriers, it might be convenient, sometimes even inevitable, for the law to rule the past and the future. This means defying the principles of non-retroactivity and non-ultractivity, which form the basis of the lex posterior. Regarding the past, for example, it may be convenient to change the legal status of an action that occurred in the past on account of its consequences for the past and the present. Under more limited circumstances, it might be wise to create a new legal framework in which the acts committed, or the entitlements acquired in the past, gain a different meaning, or have no relevance anymore. Regarding the future, it might be useful to bind future generations and commit them to a goal established today that will shape the present as much as the future. Furthermore, lawmakers seeking to ensure that the law regulates behaviours of the present must consider any potential far-reaching consequences that will materialise in the future.⁴⁸ The problem is thus that the law as a tool with a temporal scope that extends only from the present to the future, is potentially not well suited to tackle goals that lie outside this limited timespan. This yields opportunities to reimagine legal time to adapt it to the exigencies of the law.

Hence, it might be convenient to reframe the temporal scope of the law by conjoining the following necessities of the law and the development of its authority over time: (i) the legitimate choice of policies and the law by the people of the present; (ii) the length of time that a ruling must be effective, especially concerning certain goals; (iii) the sphere of autonomy of people of the past and the future; (iv) and the changes in circumstances, technology and balancing of values over time. To understand how the law should work around these four conflicting necessities, four different alternatives to the ordinary temporal scope of the law exist for dealing with laws as they relate to time-sensitive issues.⁴⁹ When we are confronted with laws that have a timespan differing from the ordinary one, we might enlist four types of law: (a) retroactive law, and (b) retrospective law, when the law has a backward-looking effect; (c) ultra-active law, and (d) ultra-spective law, when the law has a forward-looking effect.

3.1. Retroactive and retrospective laws

Looking at the first set of laws concerning the past, we have two alternatives: (a) retroactive law, and (b) retrospective law. Despite both looking backward, they differ greatly in their relationship with past events.⁵⁰ A retroactive law applies to the past as though the current law were in force when the past action took place, substituting yesterday’s legal framework with that of today.

In doing so, a retroactive law alters the legal status of a past action: for example, an action that was legally permissible at the time it occurred is made illegal before the applicable date of the new law. A retrospective law instead affects the legality of past action, but only once the law has entered into force: it does not set a new legal command, but rather it shapes the value of past human actions for the present and the future. Therefore, while retroactive legislation considers the past-present as a uniform whole shaped by the same (retroactive) rule—the past indeed does not exist, there is only a perpetual present—retrospective legislation breaks that temporal unity by subjugating past events to the new discipline only for matters concerning the present. This leaves those events that have already been concluded with no hold on the present, which remains within the remit of the former discipline.

The difference between retroactive law and retrospective law is thus evident, even if both impact on past actions. It might be useful to look at the dividing line constituted at the moment of the enactment of the law. Retroactive laws explicitly state that their effects will take place before the day of their enactment, whereas retrospective laws modify the legal consequences of what happened in the past exclusively from the day of their enactment. To distinguish the two, it is necessary to ask whether the law alters the legal status of action in the past (pre-enactment), which is retroactive, or alters the status of action in the present and the future (post-enactment), which is retrospective. For backward-looking legislation to be retroactive, it must change the legal status of past human actions; it is not enough that the legislation has an effect that eventually adversely affects past human actions.⁵¹ A law that operates with retrospectivity affects the legality of past action, but only after the applicable date of the law: while it also affects pre-enactment actions, it does so only in the post-enactment time.

The disambiguation between the two is complicated by the fact that legal systems resort to a different lexicon to figure out which backward-looking laws are permitted, and which are not.⁵² While the civil law tradition is clearer in establishing that retroactive criminal law is not permitted—and thus retroactive non-criminal laws are in principle allowed—the common law tradition frames the concept slightly differently. The latter affirms that retroactive laws are not permitted at all (other than in very exceptional cases), while retrospective laws are permitted even in criminal law. One could say that the two conceptions conflict. However, their theoretical differences can be resolved, since they originate in the same ideal of rule of law and share a similar application. In both cases, the diffidence vis-à-vis backward-looking legislation is most strongly felt in the criminal law area, since, among all branches of law, criminal law is the one that mostly aims to shape and sanction human actions.⁵³ It is also true that laws of all kinds, and not merely criminal law, enter people’s calculations, and drive their actions. An ex post facto law interferes with the stability and certainty of legal relationships, no matter under which area of law it falls.⁵⁴ Nonetheless, it is the backward-looking criminal legislation that seems most problematic, since it punishes individuals today for an act committed in the past when it was not prohibited.

Outside of that, it is generally accepted that laws can rule past actions, by retroactive or retrospective application.⁵⁵ The problem of the scope of application of the prohibition of retroactive law essentially becomes a question of the scope of application of criminal law. A law governing the past is forbidden if it falls within the area of criminal law. The same norm, however, would be allowed if its content did not fall within this area; its application to the past would then be permitted. The rule of law’s general backward projection is therefore inevitable and has a specific capacity to amend what has been done in the past. This projection is only impeded when the legal consequences attached to an action are so unforeseeable that they interfere with the dignitarian principle that the rule of law entails. The core of this principle could be protected by a limitation of its scope, as in the civil law tradition, so that criminal law covers actions, linked to human dignity, that would be dramatically infringed by the State’s coercive power. In the common law tradition, the very same principle is furthered by a conceptual limitation instead. Any retroactivity at all is prohibited, meaning that retrospective changes are allowed, since they simply attach legal consequences, and do not alter what the law prescribes.

Whichever tradition is followed, both legal concepts have the same function. The principles inspiring these concepts show connections between them. In the civil law tradition, the rule is a general prohibition of retroactive law, which can be waived but never in criminal law. This is equivalent to the general prohibition of ex post facto laws in common law systems, which admits exceptions, but does not admit exceptions in criminal law. At the same time, according to the civil law principle of tempus regit actum, a judgment should be formulated to have due regard to the law in effect when the judgment itself was made. In common law, conversely, the same cases are covered by retrospective legislation, which is the application of legislation that attaches a new legal consequence to an event that took place in the past. However, the common law principle of retrospectivity is simply the consequence of the principle of tempus regit actum since the law in force at the time should be applied to all the pending cases even if their constitutive elements have been developed in the past. At the same time, the civil law principle of tempus regit actum is the theoretical premise for the application of legislation that has retrospective effects.⁵⁶

3.2. Ultra-spective and ultra-active laws

This theoretical binary division of backward-looking laws (retroactivity/retrospectivity) might be applied to forward-looking laws too, in terms of (c) ultra-active law and (d) ultra-spective law. The systematisation cannot be identical, since the law always has a prospective or forward-looking effect, even if tenuous, while generally, it does not have a backward-looking one.

Law aims to be respected for an indefinite period, which starts in the present and projects itself into the future. The temporal unity between present and future is already accomplished: the more the present lapses, the more the future is postponed, and becomes the present for the sake of law and its authority. It is of course a legal fiction but, even so, there is no distinction between how the law deals with the present and the future: the law simply rules the future, even if conditionally. However, such uncertainty manifests itself only on the day that the law is repealed. Such unity of time, which is exceptional in backward-looking laws and only manifests in expressly retroactive laws, is instead the default rule for both law in general, and all forward-looking laws. Still, it is possible to distinguish between forward-looking laws according to the subject they rule on, and based on that, appreciate how their capacity to rule might change. That is, the law’s objective is to rule on a topic (eg, freedom of religion). When the law aims to provide how future laws will interact with that topic, no matter the circumstances, we should talk about ultra-active law.

This works as follows: in the present, the lawmaker decides how lawmakers will deal with the content of freedom of religion in the future. For example, a lawmaker might provide that no (future) laws may discriminate between people based on their (future) religion. Such a law has more than a forward-looking commitment: it concerns future decisions on such a topic. Its mandate aims to be indefinite. The present lawmaker assumes that circumstances may change in the future, but that the legal rule must be maintained as such, nevertheless.

The temporal unity of ‘present-future’ is reinforced here, with the dominance of the present being more evident: the future will never come into existence for said laws. This unity postulates an eternal present in which the voice of the law will always remain the same. As much as retroactive law consumes the past by retro-extending the present, ultra-active law extinguishes the future by making it part of the present. By contrast, where the subject of the law is a concern of the present, and that subject has a need for future continuity on account of its nature, length, and time of transition, we should talk about a different type of law. Here, the lawmaker aims to ensure continuity between the present and the future to ensure that the commitment undertaken today will achieve its goal. The desired effects are situated in a necessary continuity between the present and the future: they are the same effects but spread out over a given period. Such a commitment to the goal, however, evidently has an end. It is a mutable, future objective, which is not written in stone.

The term ‘ultra-spective’ law was chosen because this law is strictly speaking neither purely prospective nor purely ultra-active. The deadline for the law is not an unspecified eventuality, albeit that this is decisive for the scope of its ruling, as is the case with prospective law. This deadline is not even a legal enactment that does not interfere with the law’s application, as can be seen with ultra-active law. Rather, the deadline is a well-defined moment in the future based on which effects are calculated and distributed over the timespan leading up to it. In ultra-spective law, time’s finiteness is not just a possibility, it is the constitutive element of a rule that must be purposely established in advance in order to calculate the amount and the distribution of legal effects. The subjects of the legal effects of the ultra-spective law are not unlimited generations to come. Instead, they are a predetermined number of generations. This is similar to backward-looking laws, where it is possible to calculate the legal entitlements that the law will impact upon. The ultra-spective law still leaves the possibility, and even postulates, that new legislation will be adopted once the goal of the law in question has been achieved.⁵⁷

It is the natural timespan of a certain goal that it requires such a projection into the future time, rather than an ambition for eternal validity. The temporal unity of ‘present-future’ is fragmented here: the future will be different from the present and a new law will be needed once the deadline expires. Instead of the whole future being conquered by the present, only the part of the future that is needed to make the present choice possible is covered. In such cases, the future is only involved as the playing field where the goal of the present has its effect. Such laws look to the future as a necessary element of their efficacy, but they aim to achieve a goal of the present.

Since all laws are generally prospective, all laws could be argued to be ultra-active, or at least ultra-spective. However, this is not necessarily the case. Some laws achieve their aims by having an instantaneous effect: goals always lie in the future, but some of them can be achieved immediately. For example, by prohibiting an activity, giving access to information, stating the election of an individual, or declaring the provision of State aid unlawful, laws have an immediate effect. Such acts do not need a projection into the future. If the world were to end tomorrow, such laws would still be effective; they still would have reached their goals. In contrast to such ordinary laws, ultra-spective laws are inherently projected into the future to the extent that they only have meaning when linked to a deadline, which marks the expected achievement of the goal, as much as retrospective laws rely on their date of enactment for regulating affairs of the past that have not yet ended. Here, the balancing of values is not only done in the present but in the continuity of ‘present-future’, as marked by the deadline of the event. The future deadline for forward-looking laws is, therefore, what the moment of the enactment of the law is for backward-looking laws: it helps distinguish ultra-active from ultra-spective laws. Both types of forward-looking laws need a defined timespan because they are framed around it.

However, in the case of ultra-spective laws, that timespan is expected to end. The section of the future marked by the deadline indeed falls under the purview of the present and is unified under the rule of the present law. This section, however, is limited, and does not cover the entire future, as is the case for ultra-active laws. Ultra-active laws are the exception to the rule of lex posterior. An ultra-active law postulates that the law keeps on applying to certain facts no matter the enactment of new legislation. Therefore, such laws have the purpose of regulating an issue in the future even after they are no longer in force. An ultra-active law has no claim of superiority over conflicting future laws: it merely postulates that another, conflicting law rules over a matter.⁵⁸ Simply put, the new law will only apply to facts that happened after its enactment, while facts that happened before but are judged in the future will still be decided according to the ultra-active law. Ultra-spective law does not even have this latter claim: the facts that happened before the enactment of the new law will be judged according to the law ruling at that (future) time. It does not have a claim to continue to regulate cases after its expiration date. Similar to retrospective law in reverse, future events taken into account by ultra-spective laws are considered to be subject to the rules of the present, even if it might not be so in the future—as much as retrospective laws do not change the legal status of events of the past—and future events provide legal consequences for the present. Thus, whereas in retrospective law, the law governs the present while considering the past, in ultra-spective law, the law rules the present while considering the future.

Continuing with the analogy, in retrospective law, it is the enactment date that determines that past events, from that moment onwards and not before, will be affected by the law of the present. In ultra-spective law, it is the deadline date that provides that future events, until that moment and not after, will be affected by the law of the present. Here, the temporal line is inverted. This is because of the law’s prospectivity, making the temporal unity of ‘present-future’ be accomplished by default, even if it is contingent on further changes.

4. The necessarily temporal nature of public law

With regard to the values and the types of law aforementioned, retroactive (a) and ultra-active (c) laws are usually quite problematic. This is because they respond to the same exigencies and meet the same limit of constitutional laws. For this very reason, they usually have constitutional rank to ensure their effect. Constitutional law, on the one hand, and retroactive/ultra-active law, on the other hand, are rather similar from a structural and teleological point of view, even if the former operates along the lines of lex superior and the latter along the lines of lex posterior. Constitutional laws exist because of a certain mistrust towards democracy, or better still, towards past and future majorities.⁵⁹

Therefore, these laws are generally more rarely enacted, such as during a constituent moment or in order to redress blatant injustices during extraordinary times.⁶⁰ In the same vein, retroactive laws imply that the people of the present can and should get redress from individuals for past legal mistakes; and ultra-active laws are adopted because future legislation must not contradict what has been established today, regardless of future developments. All these forms crystallise the lapse of time in a single moment, situating the command of the law in an ever-lasting present. Constitutional law, and retroactive and ultra-active laws as well, postulate a unity of time that disregards values other than those of the present.⁶¹

Having situated the functioning of the law in human temporality, these two strong temporal forms—retroactivity and ultractivity—appear problematic considering the necessity for a legitimate sphere of autonomy of peoples of the past and the future (iii), and the changes in circumstances, technology and the balancing of values over time (iv). The existence of more moderate forms of intrusion in past and future times—retrospective and ultraspective laws—instead have constitutive value for the law itself, especially for public law. Indeed, in public law adjudication, most of the laws that address past events are retrospective, and most of the future commitments follow the logic of ultra-spectivity. This is not surprising at all. The principle of tempus regit actum, at the core of both forms, is particularly consistent with the function and the scope of public law. The principle states that public powers should be exercised following the legal framework of the time of its enforcement, and that only one procedure needs to be followed at any time, which is the one currently in force. Indeed, there can be no other option: the rule of law would be absurd if the law applied an expired or yet-to-be legal framework. Moreover, infinite discrepancies and inequalities would materialise if each case were judged according to the legal framework in force at the time of the acts, rather than the framework existing at the time of the judgment. No one can claim that since they started to carry out one activity in compliance with past rules, they are, in the present, still entitled to act as they used to notwithstanding a change in the law. Similarly, no one can deny that, since certain public law goals can be met only over time, individual legal positions will vary according to adjustments and amendments enacted in the future. If the situation were otherwise, two pillars of the functioning of public law would be dramatically jeopardised—that the law currently in force is the only legal source for the legitimate exercise of public power as a matter of rule of law and legal sources; and that equality exists in the application of public power as a matter of rule of law and impartiality of public action. Rule of law would be ineffective if it left the task of ruling the present to past legislators, depriving the current legislator of the possibility to act with a reasonable expectation of future effects. At the same time, bending public law to the law in force at the time a legal entitlement was awarded would be a gross violation of the principle of equality.

It implies differentiated treatment between individuals by applying a different set of rules depending on the time of an activity, which is unreasonable and irrational. This temporal course requires that, when the prohibitions of retroactivity or ultra-activity do not apply, the scope of the current law re-enacts, ruling the whole reality, as formed by multiple events, through the law.⁶² Public power has to comply with the legal rules regulating its action. In its temporal dimension, public power is ruled by tempus regit actum. In the rule of law lexicon, this means that the current law regulates the law that must be applied. The law will then adjudicate cases according to the current parameters, irrespective of the applicants’ previous situations as configured by past legislation or future adjustments. The law thus has an inherent projection into the past and the future, or, at least, impinges on their consequences for the present, as retrospective and ultra-spective laws do.⁶³

The case presented in the introduction concerned the Italian administrative law provisions that disqualify or remove individuals from public offices if they are sentenced with a final criminal conviction. The rule’s rationale is to keep institutions clear of individuals whose integrity—as a legal concept⁶⁴—is compromised by criminal actions, and therefore jeopardises the institution’s overall integrity. The legislation then sets a new rule valid from the present, which, however, necessarily regulates past situations too. Then, the procedure follows a retrospective route: the individual’s suitability to access or retain the public office is assessed. This involves consideration of actions committed before the legislation was in force if they lead to a criminal conviction. Such an assessment applies to any public official, despite the legislation in force at the time they got the position did not provided such consequences. Even if the criminal conviction was established before the enactment of the law, the legislation that disqualifies convicted public officials applies: the competent authority simply applies the law currently in force, leading to the disqualification of the public as a (new) consequence of the already existing criminal conviction.⁶⁵ A fortiori, Berlusconi, who was found guilty in final instance after the enactment of the law, lawfully suffered the consequences of the law. Therefore, claiming that the law was retroactively applied to him is incorrect. The law’s application simply follows the principle of tempus regit actum and, consequently, it may operate retrospectively.

One might argue that this retrospective application is justified by the public interest—the institution’s integrity—and by the peculiar nature of the individual entitlement at stake—the right to be elected.⁶⁶

However, the law’s retrospective application goes beyond cases like this. In the Netherlands, for example, the traditionally appealing fiscal regime for immigrants has been recently re-shaped under pressure from national taxpayers: while in the past an immigrant enjoyed eight years of tax break of 30 per cent on income, starting from 2019 this period has been reduced to five years.⁶⁷ This has been enforced regardless of when the tax break period began for each immigrant taxpayer, to the extent that the duration of the tax break now depends upon how much time before the regulation someone has arrived. In opposition to counter-claims—people argued that they came to the Netherlands counting on a longer, and not on a shorter, tax break period—the Government had no difficulties in justifying the measure. It argued that, despite having an impact on already established entitlements, the law was not retroactive but simply retrospective, impacting upon legal entitlements formed in the past, but dealing with them through the new regulation only after the post-enactment day. Retrospective application is not limited to administrative or fiscal rules: actually, it may affect individual rights even in the criminal law area. Procedural statutes are an example of this.⁶⁸ They are always applied retrospectively to proceedings that are not concluded at the time of the judgment, no matter when the contested actions occurred. It would indeed be unfair to apply different procedural rules to the same actions based on when they occurred.

This is also true for evidentiary rules: for example, the first criminals apprehended and charged primarily based on DNA evidence could not have reasonably claimed that had they known that the authorities could make use of it, they would have changed their behaviour or perhaps even have decided not to commit the crime.⁶⁹

Cases that apply ultra-spectivity are necessarily rarer, as the past has a greater impact on the present than the future does. However, these cases are increasing in number, as more and more the legal framework must deal with events that have consequences for the long-term and cannot be tackled without considering their cross-generational dimension. A notorious case of ultra-spectivity was the aforementioned German Constitutional Court decision, which held several provisions of the 2019 Climate Change Act—that sets out gas emissions reductions over the next decades—to be unconstitutional. Particularly, the Court declared the law unconstitutional because it allocated the burden of making emission reductions to future generations in a disproportionate manner. According to the judges, the reduction in greenhouse gas emissions scheduled for 2030 was insufficient to tackle climate change, and the remaining reduction burden was deemed unfair to push forward until after 2030.⁷⁰

While the Act fulfilled the State’s duty to protect fundamental rights from the consequences of climate change for the present, the Court stated that it was unconstitutional insofar as it did not sufficiently protect persons against future curtailment of their rights emerging as climate change progresses. The more urgently climate change comes to the fore, the heavier the duty to protect the climate becomes.⁷¹ Therefore, the Court stated that the Act violated the rights of the people presently alive who will experience a downgrade of their fundamental rights in the future. Indeed, the greater the emissions budget permitted until 2030, the greater the risk that from 2031 the State will have to intervene, thus impinging with greater severity on fundamental rights.⁷² The State would also be increasingly entitled to do so, because the defense of fundamental rights, when balanced against climate protection, decreases more and more as climate change intensifies.⁷³ Every amount of CO₂ that is allowed today narrows the remaining options for reducing emissions in the future. The Act allowed so much of the remaining budget to be consumed that those future losses of freedom would inevitably assume unreasonable proportions from today’s perspective. The Court declared that the Constitution affords protection against threats to freedom caused by gas reduction burdens being unilaterally offloaded onto the future. Significantly, the Court called this protection an ‘inter-temporal safeguarding of liberties’.⁷⁴

The purview afforded is an ultra-spective one, because it evaluates future events according to today’s principles, and calculates and distributes legal effects—under the principle of proportionality—in a timespan which must encompass—under the principle of equality—present and future generations. This is the core of ultra-spective reasoning: it is the standpoint of today that counts in terms of the goals, burdens of the parties, and rules to be consequently adopted.

Because we invade the realm of the people of the future, we must treat them equally to the people of today. While operating from an ultra-spective purview, two different legal protections cannot be enacted. It is not permissible to have one protective provision for the living and another for future generations, offloading the worst part of the deal onto the latter. Ultra-spective reasoning shapes the constitutional balancing of rights: future risk regarding future exercise of fundamental rights must be tackled now, and possibly justified by the legislator in the present according to the present circumstances. Unanimity on future climate developments—as well as the urgency for adequate counter-measures—has made climate litigation the elective field for ultra-spective reasoning: many courts have started employing ultra-spective considerations for dealing with such a global emergency.⁷⁵

Nonetheless, similar considerations might be upheld in legislative reforms that have application into the future, like, for example, the prohibition of dangerous products in order to the next generations’ health. In the fight against smoking New Zealand has been pioneering a legally innovative approach: the Smokefree Environments and Regulated Products Amendment Regulations 2023 prohibits selling tobacco products to minors or persons born on or after 2009.

The legislation’s ultimate goal is to extinguish the use of tobacco by 2050: considering that nicotine causes addiction, the Act excludes people who have never smoked from the prohibition, since by 2050 the greatest part of the population will have never been allowed to smoke and consequently develop tobacco addiction. By setting the 2050 deadline, the legislation has carved out a generation, the ‘smoke-free generation’, instituting obligations upon that deadline counting back from the future: by having no tobacco consumption in 2050, people are discouraged from starting smoking. This ‘stops the start’ by eliminating incentives located in the past, but in a future-oriented fashion by considering only those born in 2009. Recent generations will be treated differently, as there will be adults who can and who cannot smoke in 2027 based exclusively on the year they were born (this year was the baseline the law needed to effectively comply with the 2050 deadline). In addition to this, the legal smoking age will increase too. The ultra-spectivity here works as follows: the present obligation—prohibition of smoking—is calculated, enacted, and distributed starting from a future deadline which marks the achievement of a goal whose particular nature—quitting an addictive habit—requires that the effects shall be spread over time in order to be effectively reached.

In all these cases, the future is not a faraway land: it is the coming day where the people of today will live, and it is shaped by the decisions of today. The law can then take an ultra-spective form, which has the characteristic of being bound to a future date that creates obligations for the past. Such judgements invert the ‘present-future’ timeline into ‘future-present’, deriving legal obligations from the present while looking back from the perspective of the future.⁷⁶ Retrospective and ultraspective legislation are not necessarily inconsistent with the values of global constitutionalism in the temporal sphere. Their effects on the past and the future are limited compared to retroactive and ultra-active legislations, since they reduce harm to the entitlements of past and future people, and effectively tackle global challenges.

5. Conclusions

We started from the assumption that law’s projection in time is somehow barred by the global constitutionalist principles that privilege a restrained conception of the temporal dimension of law. However, faced with new global challenges like climate change, the re-shaping of law’s temporal boundaries may play a crucial role in helping to achieve global constitutionalism, by recognising that the continuity of past-present-future is the right timeframe to face such challenges, rather than the traditional ‘ever-lasting present’ framing.⁷⁷

Specifically, there is a need for legal determinations that address a ‘large time’ (Grosszeit).⁷⁸ Spread over such a timespan, commitments can be established even if they can be accomplished only by counting from a moment that has already passed or is yet to be. Such commitments do not concern only the present people who establish them, but—because of the continuity of actions in large time—concern past and future people too. Therefore, even if their realisation may benefit mostly or exclusively isolated segments of people, these commitments still require a legal assessment that impacts current legal entitlements.⁷⁹ These commitments demand costly actions in the present in order to reap benefits for the future: as such, they are more difficult to address than when the costs and benefits align temporally.⁸⁰ It is hard to grasp an issue conceptually or experience it directly without a single temporal location. In the same vein as international problems,⁸¹ inter-temporal issues are remote and beyond the here-and-now peoples’ experience. Time, particularly, is intangible and imperceptible, unable to be touched or observed except on timescales that are usually beyond human reach. The framing of legal time as a comprehensive ‘past-present-future’ entirety grounds decisions that bridge past and future and identifies commitments that are to be upheld over time. Despite these commitments may have recipients who do not coincide with their authors—because they are no more or not yet—they are always present and pending commitments in the community.⁸²

Through the temporal forms of retrospective and ultraspective laws, institutions can make sense of these commitments, opening up a new avenue for action, grounded on interconnection and mutual duties spanning multiple generations, without prejudicing their role in determining the content of the law.⁸³ Following this perspective, it is possible to enact redistributive operations that are not horizontal or contextual, but rather vertical and inter-generational,⁸⁴ eventually even overcoming national jurisdiction.⁸⁵ The quest of global constitutionalism—how and to what extent the global regulates the local—can be successful if it is framed not only in terms of territoriality (a nomos ordering the people in different territories), but in terms of temporality too (a nomos ordering the people in different times). As global constitutionalism reflects the existence of different people in the world, its temporal entanglement should also reflect the concerns of different generations: its nomos does not live only between the global and the local, but between the past and the future as well.⁸⁶

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Berlusconi v. Italy, app no 58428/13 (ECtHR, 27 November 2018) [para. 61]. The Court finally decided to strike the application out of its list, since the claimant withdrew his petition after having obtained a judgment of rehabilitation by the competent Italian court that ended the effects of his criminal conviction. Thereby, the disqualification’s effects ceased as well since they expressly relied on the dismissed conviction.

2 Neubauer v. Germany, 1 BvR 2656/18 (Federal Constitutional Court of Germany, Order of 24 March 2021) [para. 266]. The Court ordered the legislature to specify emission reduction measures for the period after 2030 no later than 31 December 2022. The update to the legislation was ultimately passed in June 2021, and has settled targets beyond 2030 and provided for procedures to adapt the various rules.

3 3(1) and §4 Federal Climate Change Act of Germany.

4 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [para. 38].

5 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [para. 146].

6 For the sake of analytical convenience this article is limited to the observation of the meaning and function of time in the legal systems of the so-called Western Legal Tradition.

7 GI Seidman, ‘Night Laws: How Nightfall Shapes Regulation’ in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 91.

8 L Corrias and L Francot (eds), Temporal Boundaries of Law and Politics: Time Out of Joint (Routledge, 2018); P Roubier, Le Droit Transitoire. Conflits des Lois dans le Temps (Dalloz, 2008); B Adam, Timewatch. The Social Analysis of Time (Cambridge Polity Press, 1995); J Bjarup and M Blegvad (eds), Time, Law, and Society (Franz Steiner Verlag, 1995).

9 S Ranchordás and Y Roznai, ‘Introduction’ in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 1; S Holmes, ‘Precommitment and the Paradox of Democracy’ in J Elster and R Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988) 195, 231.

10 M Stronks, Grasping Legal Time. Temporality and European Migration Law (Cambridge University Press, 2022) 6.

11 B Richardson, Time and Environmental Law: Telling Nature’s Time (Cambridge University Press, 2017) 7–10.

12 T Chowdhury, Time, Temporality and Legal Judgment (Routledge, 2020) 36, 83.

13 C Greenhouse, A Moment’s Notice: Time Politics Across Culture (Cornell University Press, 1996) 7, 87.

14 Y Roznai, ‘Retroactivity – Not Only a Matter of Time! Thoughts on Analyzing Retroactive Legislation Following Genis’ (2008) 9 IDC Law Review 395, 403.

15 A Kouroutakis and S Ranchordás, ‘Snoozing Democracy: Sunset Clauses, De-Juridification, and Emergencies’ (2016) 25 Minnesota International Law Journal 29–76; RR French, ‘Time in the Law’ (2001) 72 University of Colorado Law Review 663, 668.

16 Eg Universal Declaration of Human Rights [10 December 1948], art. 11(2); International Covenant on Civil and Political Rights [16 December 1966], art. 15; EU Charter of Fundamental Rights [1 December 2009] art. 49; European Convention for the Protection of Human Rights and Fundamental Freedoms [4 November 1950] art. 7(1); American Convention on Human Rights [22 November 1969], art. 9; African Charter on Human and Peoples’ Rights [21 October 1986], art. 6; Arab Charter on Human Rights [15 September 1994], art. 15.

17 Eg Brazilian Constitution [1988], art. 5, Sect. XXXVI and XL; Canadian Charter of Rights and Freedom [1982], art. 11(g); French Declaration of the Rights of the Man and of the Citizen [1789], art. 8; Basic Law (Grundgesetz) of Germany [1949], art. 103; Indian Constitution [2015], art. 20(1); Constitution of Ireland [1937], art. 15.5.1; Constitution of Italy [1948], art. 25(2); The Constitution of Japan [1957], art. 39; Constitution of Mexico [1917], art. 14; Constitution of the Kingdom of Norway [1814], art. 97; The Constitution of the Islamic Republic of Pakistan [1973], art. 12.1(a)(b); Constitution of the Republic of the Philippines [1987], art. III, s 22; Constitution of Romania [1991], art. 15(2); Spanish Constitution [1978], art. 9(3); Turkish Constitution [1982], Article 38(1); United States Constitution [1788], Article 1, Sect. IX.

18 Calder v Bull, 3 US 386 (9 August 1798) (Dall.); Kansas v Hendricks, 117 S Ct 2072 (23 June1997); SW v The United Kingdom, app no 20166/92 (ECtHR, 22 November 1995) para. 35; contra CR v United Kingdom, app no 20190/92 (ECtHR, 22 November 1995).

19 B Juratovitch, ‘Retroactive Criminal Liability and International Human Rights Law’ (2005) 75(1) British Yearbook of International Law 337–62; C Sampford and A Palmer, ‘Judicial Retrospectivity’ (1995) 4 Griffith Law Review 170–213.

20 M Hein, ‘Constitutional Norms for All Time?’ (2019) (21) 3 European Journal of Law Reform 226–42.

21 Global constitutionalism comprises different strands of thought which entail key global principles as constitutional, and that contribute to improving the legitimacy of the international legal order. Principles of democratic constitutionalism (like citizenship, democratic governance, separation of power, rule of law, judicial protection of rights) are now recognised in most national constitutions as necessary for protecting public goods. Globalisation transforms national into global public goods, and it renders national legal frameworks incomplete and requires complementary, multilevel constitutionalism protecting global governance of these public goods. This global constitutionalism relies on multilevel protection of human rights, transnational rule of law, and respect for plural identities. See E-U Petersmann, ‘Long-term Constitutional Law for Global Public Goods’, VerfBlog, 15 August 2022, https://verfassungsblog.de/long-term-constitutional-law-for-global-public-goods/

22 L Fuller, The Morality of Law (Yale University Press, 1964) 46, 51.

23 T Bingham, The Rule of Law (Allen Lane, 2010); J Waldron, ‘The Concept and the Rule of Law’ (2008) 43 Georgia Law Review 1–64; B Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004); P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 467–87.

24 J Waldron, ‘Is the Rule of Law an Essentially Contested Concept’ (2002) 21 Law & Philosophy 137–64; J Waldron, ‘The Appeal of Law – Efficacy, Freedom or Fidelity?’ (1994) 13 Law & Philosophy 259–284.

25 Fuller (n 22) 39, 53.

26 JM Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (University of Chicago Press, 1975) 67.

27 J Harrison, ‘Time, Change, and the Constitution’ (2004) 90(6) Virginia Law Review 1601–12.

28 C Sampford, Retrospectivity and the Rule of Law (Oxford University Press, 2006) 139; T Honore, ‘Real Laws’, in P Hacker and J Raz (eds), Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Oxford University Press, 1977) 105; L Fuller (n 22) 46.

29 C Invernizzi Accetti, ‘The Temporality of Normativity: Hans Kelsen’ s Overcoming of the Problem of the Foundation for Legal Validity’ (2016) 42(1) Philosophy and Social Criticism 25–43; JN Eule, ‘Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity’ (1987) 12(3) American Bar Foundation Research Journal 379–460.

30 F Ost, Le Temps du Droit (Odile Jacob, 1999) 14–15.

31 SG Calabresi, ‘Time and the Law: The US Constitutional Experience’ in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 34; J Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government (Yale University Press, 2001) 36.

32 Thomas Jefferson to James Madison, 6 September 1789; James Madison, ‘Federalist No. 49’ in The Federalist Papers (first published 5 February 1788).

33 M Loughlin, Against Constitutionalism (Harvard University Press, 2022) 130; JE Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford University Press, 1991) 4.

34 R Dixon and T Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011) 9 International Journal of Constitutional Law 636, 639.

35 S Moyn, The Last Utopia (Harvard University Press, 2012) 6, 35.

36 D Lustig and JHH Weiler, ‘Judicial Review in the Contemporary World: Retrospective and Prospective’ (2018) 16(2) International Journal of Constitutional Law 315–72.

37 A Grapon, ‘Judging the Past: Three Ways of Understanding Time’ in L Corrias and L Francot (eds), Temporal Boundaries of Law and Politics: Time Out of Joint (Routledge, 2018) 31.

38 Y Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017) 26.

39 K Nousiainen, ‘Time of Law, Time of Experiences’ in J Bjarup and M Lkegvad (eds), Time, Law and Society: Edited Proceedings of a Nordic Symposium at Sandbjerg Gods (Franz Steiner Verlag, 1994) 23; E Grabham, Brewing Legal Times: Things, Forms and the Enactment of Law (University of Toronto Press, 2016) 8, 12; E Grabham and S Beynon-Jones (eds), Law and Time (Routledge, 2018) 2.

40 U Mattei and L Nalder, Plunder: When the Rule of Law is Illegal (Wiley, 2008) 197; A Wristrich ‘The Evolving Temporality of the Law Making’ (2012) 44(3) Connecticut Law Review 740–41.

41 B Van Klink, ‘Law at the Right Time: A Plea for Slow Law in Hasty Times’ in L Corrias and L Francot (eds), Temporal Boundaries of Law and Politics: Time Out of Joint (Routledge, 2018) 37–38.

42 JE Gersen and EA Posner, ‘Timing Rules and Legal Institutions’ (2007) 121(2) Harvard Law Review 543–89; J Gibson, ‘Political Timing. A Theory of Politicians’ Timing of Events’ (1999) 11(4) Journal of Theoretical Politics 471–96; R Mawani, ‘The Times of Law’ (2015) 40(1) Law & Social Inquiry 255–79.

43 This article adopts the perspective that the purview that time is a legal construct: time needs to be artificially fabricated to enable relationships between individuals and generations. Alternative views are the natural law perspective, according to which time is not legally constructed, but dictated by nature or a divine entity and discovered by mankind; and the Marxist accounts, that hold that time is legally instituted but, as such, is a repressive institution merely representing and enacting the hegemonic group desiderata, see L Barshack, ‘Time and the Constitution’ (2009) 7(4) International Journal of Constitutional Law 553–76.

44 RR French, ‘Time in the Law’ (2001) 72 University of Colorado Law Review 663–748.

45 H Arendt, Between Past and Future (Viking Press, 1961) 41.

46 D Cornell, Transformations (Routledge, 1993) 23, 44.

47 R Mawani, ‘The Times of Law’ (2015) 40(1) Law & Social Inquiry 255–79; M Valverde, The Chronotypes of Law: Jurisdiction, Scale and Governance (Routledge, 2015) 75; BM Stewart, ‘Chronolawgy: A Study of Law and Temporal Perception’ (2012) 67(1) University of Miami Law Review 304–22.

48 L Heinzerling, ‘Environmental Law and the Present Future’ (1999) 87 Georgetown Law Journal 2025–49.

49 EA Driedger, ‘Statutes: Retroactive Retrospective Reflections’ (1978) 23 Canadian Bar Review 264–76; B Smith, ‘Laws and Vested Rights II’ (1927–1928) 6 Texas Law Review 409–31.

50 J Waldron, ‘Retroactive Law: How Dodgy was Duynhoven?’ (2004) 10 Otago Law Review 631–54; P Salembier, ‘Understanding Retroactivity: When the Past Just Ain’t What it Used to Be’ (2003) 33 Hong Kong Law Journal 99–138; JG Laitos, ‘Legislative Retroactivity’ (1997) 52 Wash. U. Journal of Urban & Contemporary Law 81–160; W Friedmann, ‘Limits of Judicial Lawmaking and Prospective Overruling’ (1996) 29 Modern Law Review 593–607; RA Cass, ‘Judging: Norms and Incentives of Retrospective Decision-Making’ (1995) 75 Boston University Law Review 954–90; JR Trahan, ‘Time for a Change: A Call to Reform Louisiana’s Intertemporal Conflicts Law (Law of Retroactivity of Laws)’ (1998–1999) 59 Louisiana Law Review 661–766; SR Munzer, ‘A Theory of Retroactive Legislation’ (1982) 81 Texas Law Review 425–80.

51 Indeed, Fuller writes that backward-looking laws may sometimes ‘be essential to advance the cause of legality’: Fuller (n 22) 53; T Honore, ‘Real Laws’ in P Hacker and J Raz (eds), Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Clarendon Press, 1977) 105.

52 J Fisch, ‘Retroactivity and Legal Change: An Equilibrium Approach’ (1997) 110 Harvard Law Review 1056–69; MJ Graetz, ‘Retroactivity Revisited’ (1985) 98 Harvard Law Review 1820–22.

53 Del Rio Prada v Spain, app no 42750/09 (ECtHR, 21 October 2013) [para. 82]; Gheorghe v Romania, app no 23470/05 (ECtHR, 3 April 2012) [para 26]; Öztürk v. Germany, app no 8544/79 (ECtHR, 21 January 1984) [para. 53].

54 Y Roznai, ‘Legal Schizophrenia: Rethinking the Dichotomy in Distinguishing between Retroactive Criminal and Civil Legislation’, in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 269–87.

55 Del Rio Prada v Spain, app no 42750/09 (ECtHR,21 October 2013) [para. 116]; Kokkinakis v Greece, app no 14307/88 (ECtHR, 25 May 1993) [para. 52].

56 A Grabowski, Juristic Concept of the Validity of Statutory Law (Springer, 2013) 507; A Khan, ‘Temporality of Law’ (2009) 40(1) McGeorge Law Review 71–86; H Hart and M Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1995) 64.

57 From this perspective, an ultra-spective law resembles sunset legislation. Sunset legislation refers to statutory provisions enacted for a limited time, set to expire unless their validity is extended. Therefore, like ultra-spective law, sunset legislation reverses the default rules of prospectivity: whereas the traditional default rule in legislation is that the law’s validity continues in perpetuity, the default rule for sunset legislation is that legal validity terminates at the sunset date. This feature makes sunset legislation an attractive regulatory-legislative tool for various situations in which the nature of the law, policy, or circumstances requires a time-sensitive norm. In the literature it is observed that sunset laws are employed in different areas, such as (1) controversial laws (eg, liberalising abortion in a deeply religious society); (2) experimental legislation (eg, regulating the use of drones or cloning); (3) legislation responding to a short-term need and of authorisation of emergency powers (eg, legislation offering aid after extreme phenomena, such as a natural disaster or temporary suspension of civil and political rights in the fight against terrorism). The structure and purpose of sunset legislation and ultra-spective law might look similar, but while sunset legislation serves the purpose of limiting in time an emergency legal framework, an ultra-respective law has as its object the achievement of a long-lasting goal that can be met only in time. While sunset legislations relate to the technical, administrative aspect of time in legislation, ultra-spective law relates to the substantive aspect of time in law. I Bar-Siman-Tov and G Harari-Heit, ‘The Legisprudential and Political Functions of Temporary Legislation’, in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 227; H Xanthaki, ‘Sunset Clauses: A Contribution to Legislative Quality’, in S Ranchordás and Y Roznai (eds), Time, Law, and Change: An Interdisciplinary Study (Hart Publishing, 2020) 209; I Bar-Siman-Tov, ‘Temporary Legislation, Better Regulation, and Experimentalist Governance: An Empirical Study’ (2018) 12 Regulation & Governance 192–219; S Ranchordás, Constitutional Sunsets, and Experimental Legislation: A Comparative Perspective (Edward Elgar Publishing, 2014) 74; S Veit and B Jantz, ‘Sunset Legislation: Theoretical Reflections and International Experiences’ in A Alemanno (eds), Better Business Regulation in a Risk Society (Springer, 2012) 54; F Fagan, ‘After the Sunset: The Residual Effect of Temporary Legislation’ (2013) 36 European Journal of Law and Economics 209–26; J Ip, ‘Sunset Clauses and Counterterrorism Legislation’ (2013) 74 Public Law 1–26.

58 Therefore, ultra-active laws operate on a different playing field than eternity clauses. Ultra-active laws work within the realm of lex posterior, while eternity clauses in the area of lex superior. Consequentially, ultra-active law might be at a constitutional level, while eternity clauses must be. It is indeed possible, for example, to have retroactive or ultra-active legislation of sub-constitutional rank; when such a legislation conflicts with the prohibition (or obligation) of retroactive law (for example, in criminal law) is unlawful under the principle of lex superior. However, vis-à-vis other sub-constitutional sources of law, such legislation will operate under the principle of lex posterior (derogating to it: back-ward looking, if retroactive law; forward-looking, if ultra-active law). R Albert, The Architecture of Constitutional Amendments (Hart Publishing, 2023); S Suteu, Eternity Clauses in Democratic Constitutionalism (Oxford University Press, 2021); M Hein, ‘Do Constitutional Entrenchment Clauses Matter? Constitutional Review of Constitutional Amendments in Europe’ (2020) 18(1) International Journal of Constitutional Law 78–110.

59 Suteu (n 58) 18.

60 There are evidently countries where the enactment of constitutional law and the process of constitutional amendment happen more frequently. For example, Mexico (see MA Rivera Leon, ‘Understanding Constitutional Amendments in Mexico: Perpetuum mobile Constitution’ (2017) 9(2) Mexican Law Review 3–27; A Pozas-Loyo, C Saavedra-Herrera and F Pou-Giménez, ‘When More Leads to More: Constitutional Amendments and Interpretation in Mexico 1917–2020’ (2022) Law & Social Inquiry 1–32) or where the constitution-making process is somehow becoming permanent (see S Verdugo and M Prieto, ‘The Dual Aversion of Chile’s Constitution-Making Process’ (2021) 19(1) International Journal of Constitutional Law 149–68).

61 D Lustig and J H H Weiler, ‘Judicial Review in the Contemporary World – Retrospective and Prospective’ (2018) 16(2) International Journal of Constitutional Law 315–72.

62 D Slawson, ‘Constitutional and Legislative Considerations in Retroactive Lawmaking’ (1969) 48 California Law Review 216–51.

63 J Waldron, ‘The Rule of Law in Public Law’ in M Elliott and D Feldman (eds), The Cambridge Companion to Public Law (Cambridge University Press, 2015) 58.

64 The Italian legislation defines the lack of integrity incandidabilità (unsuitability) at Article 1, s 1, dlgs 31 December 2012, n 235.

65 Italian Council of State, Sez V, 29 October 2013, n 5222 and 6 February 2013, n 753.

66 The right to be elected as well as the right to vote is traditionally defined as a political, functional, and relative right. Political, because it regards the individual in their function as part of the community as a citizen, to whom is, entrusted a portion of the public power. Functional, because it has a direct and immediate impact on the functioning of the State and democracy. It remains an individual right, and its status of entitlement does not differ from other rights, but it also serves a goal that goes beyond the ones of the individual. In particular, it serves both an individual (expression of a political choice) and a general interest (composition of the elective public offices). And last, relative, since the individual’s right to contribute to this public goal is not entirely unrestricted and must be balanced with conditions settled by the law.

67 Ministry of Finance of the Netherlands (1 January 2019) referring to art 31(a), Dutch Wage Tax Act, as amended in 2013.

68 While common law countries are more at ease with the idea of retrospective procedural rules also in the criminal law area (eg United Kingdom, Criminal Procedure (Amendment) Scotland Act 2002; Australia, Migration Amendment (Excision from Migration Zone) Act 2001); civil law countries, or at least some of them (for example Greece, Italy, Spain, and Romania) are more sceptical: see the notorious case of the Italian Constitutional Court case-law Taricco: C-105/14, Taricco I (CJEU, 8 September 2015); Italian Constitutional Court, 23 November 2016, n 24/17; C-42/17, M.A.S (CJEU,5 December 2017); Italian Constitutional Court, 31 May 2018, n. 115. However, see C-107/23 PPU [Lin] (CJEU, 24 July 2023), for a more nuanced view on the prohibition of retroactive procedural criminal law in the EU context.

69 Sampford (n 29) 122–23, 244.

70 F Schramm, ‘Judges as Narrators of the Climate Crisis? An Illustrative Analysis of the Decision of the German Constitutional Court from 24 March 2021’ (2021) 7(1) European Papers 361–78; C Eckes, ‘Tackling the Climate Crisis with Counter-majoritarian Instruments: Judges Between Political Paralysis, Science, and International Law’ (2021) 6(3) European Papers 1307–24.

71 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [para- 198].

72 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [paras. 198–199].

73 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [paras. 118–120].

74 1 BvR 2656/18, Federal Constitutional Court of Germany, Order of 24 March 2021 [para. 183].

75 See n 607/2020 (Federal Court of Australia, 27 May 2021), where the court assessed that the existence of foreseeable and future harm with potentially catastrophic effects [paras. 257, 458, 506] triggers a duty of care up to institutions in the present [paras. 397, 491, 510–513]; [Reference re Greenhouse Gas Pollution Pricing Act] n 38663 (Supreme Court of Canada, 25 March 2021): an existential threat to human life like climate change should be addressed in time [para. 66] and with progressive stringency [para. 67]. An instrument like the increasing price of gas over time is an appropriate way to incentive a climate-friendly behavioral change [para. 336], and it is constitutionally legitimate also because of its ‘temporary’ nature [para. 402]; [Friends of the Irish Environment v. Ireland] n 205/19 (Supreme Court of Ireland, 31 July 2020): the court determined that the national plan to tackle global warming falls short of specificity on how to achieve the climate goals [paras. 6.21, 6.43–6.48] and ordered that details should be provided now and not left to sometime in the future [para. 6.45]; [Urgenda] n 19/00135 (Hoge Raad of the Netherlands, 20 December 2019): since future generations will have to deal with the adverse effects of climate change with greater intensity – therefore jeopardising their human rights – greenhouse gas emissions have to be adequately reduced now [para. 4.7]; STC4360-2018 (Corte Suprema de Justicia of Colombia, 5 April 2018): found that the current environmental legislation is inadequate in terms of equity between generations [para. 11.2], the court mandated to adopt an intergenerational pact to halt the deforestation and reduce gas emissions [para.14]; [Sarah Thomson vs. The Minister for Climate Change Issues] CIV 2015-485-919 (High Court of New Zealand, 2 November 2017), where the court ascertained that the climate legislation’s purpose and scientific evidence limited the government’s discretion in setting a emissions reduction target for 2050 [para. 162]. For a general overview of climate law litigation, see L Parker, J Mestre, S Jodoin, and M Wewerinke-Singh, ‘When the kids put climate change on trial: youth-focused rights-based climate litigation around the world’ (2022) 13(1) Journal of Human Rights and the Environment 64–89.

76 J Waldron, ‘Transcendental Nonsense and System in the Law’ (2000) 100 Columbia Law Review 16–53; V Turner, ‘Images of Anti-Temporality: An Essay in the Anthropology of Experience’ (1982) 75(29) The Harvard Theological Review 243–65.

77 Especially law-making is traditionally organised along the short-term lines of the democratic process, which is based on election cycles, placing it at a structural risk of being less responsive to tackling the issues that need to be pursued over the long term. Short-termism and the limited constituency focus of politics do not allow the protection of faraway interests. Their protection is in danger of being lost if the content of the law itself remains fully determined by the day-to-day political process. A process that has a short-term approach and is orientated towards directly expressible interests.

78 M Fichera, ‘The Relevance of the Notion of Time for Constitutionalism Beyond the State: Towards Communal Constitutionalism?’ (2021) 1(1) Critical Inquiries in Law, Philosophy and Globalization 153–86.

79 N Dishon, ‘Temporary Constitutional Amendments as a Means to Undermine the Democratic Order: Insights from the Israeli Experience’ (2018) 51(3) Israel Law Review 389–435.

80 K Shrader, Environmental Justice: Creating Equality, Reclaiming Democracy (Oxford University Press, 2002) 45.

81 Interestingly, some authors have advanced that the ‘power or control test’, developed in relation to inter-national law claims, could be extended to the inter-temporal claims too. Following this reasoning, a court could claim jurisdiction over a case if the future rights at stake are subject to the ‘power or control test’ of today’s actions and omissions. The ultimate concern warranting this jurisdiction would be the preservation of choice for future people: according to this test, a court could legitimately assume competence over cases that will credibly threaten basic rights or undermine the institutional infrastructures enabling decision-making. See B Lewis, ‘The Rights of Future Generations within the Post-Paris Climate Regime’ (2018) 7(1) Transnational Environmental Law 69–87; D Bertram, VerfBlog, Extratemporal Jurisdiction: When Should Courts address harm to the Future 15 August 2022, online: https://verfassungsblog.de/extratemporal-jurisdiction/.

82 A Grapon, ‘Judging the Past: Three Ways of Understanding Time’ in L Corrias and L Francot (eds), Temporal Boundaries of Law and Politics: Time Out of Joint (Routledge, 2018) 22–23.

83 R Krämer-Hoppe, ‘The Climate Protection Order of the Federal Constitutional Court of Germany and the North-South Divide’ (2021) 22 German Law Journal 1393–408; M Payandeh, ‘The Role of Courts in Climate Protection and the Separation of Powers’ in W Kahl and M-P Weller (eds), Climate Change Litigation (Hart Publishing, 2021) 62.

84 John Rawls, for example, considered that intergenerational relations had to be governed by egalitarian considerations. From behind the ‘veil of ignorance’, it would be intolerable for a single generation to impinge upon the prerogatives of their successors. J Rawls, A Theory of Justice (Harvard University Press, 1999) 260.

85 It is plausible to address intergenerational equity as a cosmopolitan obligation, owed by the current global population to future generations independently from State affiliation. From a conceptual purview, it is not possible to predict the geopolitical set-up of the future: if the sovereign form of the state transforms, so would the class of beneficiaries. From a normative purview, national courts, for example in Urgenda [n 19/00135 Hoge Raad of the Netherlands, judgment 20 December 2019] and Neubauer [1 BvR 2656/18 and others Federal Constitutional of Germany, Order of 24 March 2021], have begun to address intergenerational conflicts by extending the scope of obligations to foreign citizens. D Bertram, ‘“For You Will (Still) Be Here Tomorrow”: The Many Lives of Intergenerational Equity’ (2022) Transnational Environmental Law 1–29. See also J Jahn, ‘Domestic Courts as Guarantors of International Climate Cooperation: Insights from the German Constitutional Court’s Climate Decision’ (2023) 3(21) International Journal of Constitutional Law 1–25, 13, 23; P Minnerop, ‘The “Advance Interference-Like Effect” of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court’ (2022) 34(1) Journal of Environmental Law 135–62, 153–56.

86 P Linden-Retek, ‘Cosmopolitan Law and Time: Toward a Theory of Constitutionalism and Solidarity in Transition’ (2015) 4(2) Global Constitutionalism 157–94.