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| It may, however, have validity as a doctrine in defense of penal prosecution. The seminal case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia state supreme court held that penal statutes may become void under the doctrine of desuetude if: | It may, however, have validity as a doctrine in defense of penal prosecution. The seminal case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia state supreme court held that penal statutes may become void under the doctrine of desuetude if: | ||
| *(1) The statute proscribes only acts that are malum prohibitum and not malum in se; | *(1) The statute proscribes only acts that are ] and not ]; | ||
| *(2) There has been open, notorious and pervasive violation of the statute for a long period; and | *(2) There has been open, notorious and pervasive violation of the statute for a long period; and | ||
| *(3) There has been a conspicuous policy of nonenforcement of the statute. | *(3) There has been a conspicuous policy of nonenforcement of the statute. | ||
Revision as of 20:43, 6 June 2006
In law, desuetude (from the French word désuet, outdated) is a doctrine that causes statutes, similar legislation or legal principles to lapse and become unenforceable by a long habit of non-enforcement or lapse of time; it is what happens to laws that are not repealed when they become obsolete. It is the doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors.
The doctrine of desuetude is not favoured in the common law tradition. In 1818, the English court of King's Bench held in the case of Ashford v. Thornton that trial by combat remained available at a defendant's option in a case where it was available under the common law. The concept of desuetude has more currency in the civil law tradition, which is more regulated by legislative codes, and less bound by precedent.
Does desuetude apply to U.S. state and federal constitutions? In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970), the United States Supreme Court asserted that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."
It may, however, have validity as a doctrine in defense of penal prosecution. The seminal case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia state supreme court held that penal statutes may become void under the doctrine of desuetude if:
- (1) The statute proscribes only acts that are malum prohibitum and not malum in se;
- (2) There has been open, notorious and pervasive violation of the statute for a long period; and
- (3) There has been a conspicuous policy of nonenforcement of the statute.
This holding was reaffirmed in 2003 in West Virginia v. Blake, ___ S.E.2d ____ (W. Va. 2003)
The doctrine has been applied in regard to acts of the pre-1707 Scottish Parliament.
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