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How else could a legal system work in a world where judgment of action must follow those actions -- i.e. where they cannot be done at the same time? If there was no retrospective effect there would be no true justice, so it is implicit in the act of judging. From the perspective of social fact, what is done is fictional, from the perspective of justice it is essential and true. I don't see why social fact should trump the juridical view on this point at all.

Charles Mitchell wrote:

Re 2a: I'm afraid that I disagree with Jason and Robert that the only source of difficulty here is the artificiality of saying that the payor was mistaken. Problems also flow from the fact that the content of law is an objective social fact that can be determined at any given moment. The question whether the law requires X to pay Y in a given situation may sometimes be difficult to answer because the law is uncertain, but suppose that we know the answer because a judicial decision gives us a clear 'yes'. If X pays Y pursuant to the rule and then seeks to recover his payment, then Y can say that the rule established by the case constitutes a legal ground for the transfer. If X pays Y, and then in a different case the rule is overturned, it is fictional to say that X can now recover from Y because there never was a legal ground for X's payment because there never was a rule requiring the payment. To say that there is no fiction 'because the law can be changed with retrospective effect' (Rob) is mere assertion, and to say that 'the judges are for the most part stating what they think the law always demanded' (Jason) does not really meet the point. I don't deny that the courts (and Parliament) have the power to deem there never to have been a legal ground for X's payment if they want to - but I want them to tell me explicitly why they think this is a good idea, and I don't think it's wise to let them off the hook by telling them that repayment just follows 'automatically'.