Abstract

The doctrines of non-retroactivity and legitimate expectation find their normative foundation in the idea that legal norms and administrative decisions should be stable and predictable. Thus both doctrines are intertwined around the idea that the legal system has to allow individual planning and reliance on law. This intertwinement situation is problematic because the protection of individual planning does not fully explain the prohibiting sense often infused in the non-retroactivity principle. Also, extending this principle to genuine legitimate expectation cases may result in unduly and excessive protection to individuals from law or policy changes. Thus, this paper proposes a new normative foundation for the non-retroactivity principle around finality. This proposal will explain the prohibiting sense of the non-retroactivity principle and allow the development of an understanding that retroactivity happens in degrees. Finally, this proposal will enable making sense of the legitimate expectation case law and the justification of compensation for damages caused by detrimental reliance.