Desuetude
In
The policy of inserting sunset clauses into a constitution or charter of rights (as in Canada since 1982) or into regulations and other delegated/subordinate legislation made under an act (as in Australia since the early 1990s) can be regarded as a statutory codification of this jus commune doctrine.[2]
English law
The doctrine of desuetude has been diluted in the
Scots law
The doctrine exists in Scotland, being of the civil law tradition, where it can operate as a rare form of repeal. In Scotland, non-use is not the same as desuetude. Disuse must be accompanied by other identifiable provisions that would make the enforcement of the statute inconsistent: neglect over such a period of time that it would appear that a contrary custom had developed; and that a contrary practice had developed which is inconsistent with the law. Regarding the Scottish application, Lord McKay stated in Brown vs. Magistrates of Edinburgh:[4][6]
Desuetude requires for its operation a very considerable period, not merely of neglect, but a contrary usage of such a character as practically to infer such completely established habit of the community as to set up a counter law or establish a quasi repeal.
United States law
Desuetude does not apply to requirements of the United States Constitution. In
It may, however, have validity as a doctrine in defense of penal prosecution. In 1825, the
The seminal modern case under U.S. state law is a
- The statute proscribes only acts that are malum prohibitum (wrong because prohibited by statute) and not malum in se (intrinsically wrong);
- There has been open, notorious and pervasive violation of the statute for a long period; and
- There has been a conspicuous policy of nonenforcement of the statute.
This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003).[7]
While it may not be a violation of due process to enforce a desuetudinal law, the fact that a law has long gone unenforced may present a bar to standing in a suit to prevent its future enforcement. In Poe v. Ullman, the Supreme Court refused to hear a challenge to Connecticut's ban on birth control, writing:
The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis ... "Deeply embedded traditional ways of carrying out state policy ..." – or not carrying it out – "are often tougher and truer law than the dead words of the written text."[8]
Shortly thereafter, Connecticut's birth control law was enforced, and struck down, in Griswold v. Connecticut.[9]
See also
- Civil law (legal system)
- Common law
- Holding (law)
- Legal doctrine
- Standing (law)
- Statute Law Revision Act
- Unenforced law
References
- ISBN 9780803278219.
- ISBN 9783540212256.
- ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems, Website of the Faculty of Law of the University of Ottawa
- ^ ISBN 9789024750795.
- ^ Hall, Sir John (1926). Trial of Abraham Thornton. William Hodge & Co. p. 179.
- ^ Brown v Magistrates of Edinburgh [1931] S.L.T. 456, per Lord MacKay at 558.
- ^ Canterbury v. Blake West Virginia Judiciary website
- ^ Poe v. Ullman FindLaw
- ^ Griswold v. Connecticut Legal Information Institute