In law

Law

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, desuetude (from the Latin

Latin

Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 desuetudo, outdated, no longer custom) is a doctrine that causes statute

Statute

A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

s, 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 repeal

Repeal

A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....

ed when they become obsolete

Obsolescence

Obsolescence is the state of being which occurs when an object, service or practice is no longer wanted even though it may still be in good working order. Obsolescence frequently occurs because a replacement has become available that is superior in one or more aspects. Obsolete refers to something...

. It is the legal doctrine

Legal doctrine

A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...

 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 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 the common-law doctrine.

British law

The doctrine of desuetude is not favoured in the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 tradition. In 1818, the English

England

England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 court of King's Bench

King's Bench

The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...

 held in the case of Ashford v Thornton that trial by combat

Trial by combat

Trial by combat was a method of Germanic law to settle accusations in the absence of witnesses or a confession, in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it is a judicially sanctioned duel...

 remained available at a defendant

Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

's option in a case where it was available under the common law. The concept of desuetude has more currency in the civil law

Civil law (legal system)

Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 tradition, which is more regulated by legislative codes, and less bound by precedent.

The doctrine has been applied in regard to acts of the pre-1707 Scottish Parliament

Scottish Parliament

The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...

. Hundreds of Acts dating back to the Middle Ages

Middle Ages

The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...

 have also been amended or abolished in current and former British territories by numerous Statute Law Revision Act

Statute Law Revision Act

Statute Law Revision Act is a stock short title which was formerly used, in the United Kingdom and Canada, and is still used in Australia and in the Republic of Ireland, for legislation whose sole purpose was to repeal obsolete enactments...

s from falling into desuetude.

United States law

Desuetude does not apply to violations of the United States Constitution. 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. In 1825, the Pennsylvania Supreme Court declined to enforce the traditional punishment of ducking

Cucking stool

Ducking-stools and cucking-stools are chairs formerly used for punishment of women in England and Scotland . The term cucking-stool derives from wyuen pine as referred in Langland's Piers Plowman.They were both instruments of social humiliation and censure, primarily for the offense of scolding...

 for women convicted as common scold

Common scold

In the common law of crime in England and Wales, a common scold was a species of public nuisance—a troublesome and angry woman who broke the public peace by habitually arguing and quarreling with her neighbours...

s, stating that "total disuse of any civil institution for ages past, may afford just and rational objections against disrespected and superannuated ordinances." Wright v. Crane, 13 Serg. & Rawle 220, 228 (Pa. 1825).

The seminal modern case under U.S. state law is a West Virginia

West Virginia

West Virginia is a state in the Appalachian and Southeastern regions of the United States, bordered by Virginia to the southeast, Kentucky to the southwest, Ohio to the northwest, Pennsylvania to the northeast and Maryland to the east...

 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 Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:

1. The statute proscribes only acts that are malum prohibitum
   Malum prohibitum
   Malum prohibitum is a Latin phrase used in law to refer to conduct that constitutes an unlawful act only by virtue of statute, as opposed to conduct evil in and of itself, or malum in se. Conduct that was so clearly violative of society's standards for allowable conduct that it was illegal under...
   
   and not malum in se
   Malum in se
   Malum in se is a Latin phrase meaning wrong or evil in itself. The phrase is used to refer to conduct assessed as sinful or inherently wrong by nature, independent of regulations governing the conduct...
   
   ;
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 State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)http://www.state.wv.us/wvsca/docs/spring03/31150.htm.

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

Standing (law)

In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...

 in a suit to prevent its future enforcement. In Poe v. Ullman

Poe v. Ullman

Poe v. Ullman, , was a United States Supreme Court case that held that plaintiffs lacked standing to challenge a Connecticut law that banned the use of contraceptives, and banned doctors from advising their use, because the law had never been enforced. Therefore, any challenge to the law was deemed...

, the Supreme Court refused to hear a challenge to Connecticut's ban on birth control

Birth control

Birth control is an umbrella term for several techniques and methods used to prevent fertilization or to interrupt pregnancy at various stages. Birth control techniques and methods include contraception , contragestion and abortion...

, 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.'

Shortly thereafter, Connecticut's birth control law was enforced, and struck down, in Griswold v. Connecticut

Griswold v. Connecticut

Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...

.