The Rule Written After the Act
By Ayman Fouad Abdelgawad
A society that changes its standards must still distinguish learning from retrospective punishment.
Imagine a town announcing that a practice permitted last year will become an offence next month. People may oppose the change, but they can at least alter their conduct. Now imagine the announcement adding that everybody who followed the old rules will also be punished. The second decision takes something more than liberty or money. It takes away the possibility of having acted correctly.
Article 7 of the European Convention on Human Rights protects against retrospective criminalisation and heavier retrospective penalties, while preserving prosecution for acts already criminal under the general principles specified in its second paragraph. That legal safeguard has a wider moral resonance: a rule should be capable of guiding the person whom it later judges. The discussion here concerns that principle, rather than the resolution of any particular case.
The attraction of hindsight is easy to understand. Once a harmful practice becomes intolerable, earlier tolerance can look like complicity. Those who suffered may reasonably resent being told that their injuries belonged to an era with different standards. Yet two questions remain distinct. Was the practice wrong? And what grounds existed for imposing a particular punishment on a particular person at the time?
Keeping those questions separate does not require admiring the past. A society can acknowledge injury, offer repair, remove honours, rewrite institutions and teach an unsparing history without pretending that every available response is the same kind of judgement. Criminal punishment has a particular severity. Its restrictions matter especially when moral anger makes restriction feel like cowardice.
There is also an inequality hidden in retrospective standards. Well-connected people can anticipate which customs are losing protection; others rely on published instructions. If official permission can later become evidence of guilt, navigating society begins to require privileged access to its future mood. The obedient citizen becomes less secure than the skilful reader of influence.
Of course, a written permission cannot settle every moral question. Some conduct violates obligations deeper than a convenient local rule. The difficulty is to explain those obligations honestly, using the standards that actually apply, rather than inventing a prohibition after selecting its target. Otherwise the language of conscience supplies authority with an unlimited power to revise its own record.
I find the strongest defence of this restraint in its modesty. It leaves room to say that the law was inadequate, that people were harmed, and that repair remains necessary. What it refuses is the fantasy that today's wisdom was yesterday's available instruction. A just society needs the courage to change its rules, and the discipline to remember when it changed them.