Challenging Unenforced Laws: Is It Possible?

An unenforceable law is one that, despite being valid, will not be enforced by a court. This could be due to the law conflicting with the values of a later statute, such as in the UK, where the Treason Felony Act 1848, which criminalises advocating for a republic, is now unenforceable due to the Human Rights Act 1998, which protects this form of advocacy as free speech. Unenforceable contracts, such as those for prostitution in English law, are also recognised in some jurisdictions. While prostitution is not a crime in England, soliciting a prostitute is, and so the contract is only valid if it is fully performed. If either party refuses to complete the bargain, the court will not assist the disappointed party.

Characteristics of unenforced laws

The role of the government in enforcing laws

In a democratic system, such as the United States, the government is typically divided into three branches: the legislative, executive, and judicial branches. Each branch plays a distinct role in the law-making and enforcement process, ensuring a system of checks and balances to prevent the concentration of power.

The legislative branch, comprising Congress or equivalent bodies, is responsible for creating and passing laws. These laws are intended to reflect the needs and values of the people and provide a framework for social conduct. Once a law is passed, it becomes the responsibility of the executive branch to enforce it. This branch includes the head of state, such as the president or prime minister, along with various government agencies and law enforcement entities. They are tasked with ensuring that the laws are upheld and that citizens abide by the established rules.

The judicial branch, on the other hand, serves as an impartial arbiter of the law. It interprets the laws, ensures their constitutionality, and resolves disputes. Courts within this branch hear cases where laws may have been broken and determine guilt or innocence, often with the support of law enforcement agencies. In the United States, the Supreme Court, composed of justices nominated by the president and confirmed by the Senate, holds the power to overturn unconstitutional laws, further safeguarding citizens' rights.

It is worth noting that not all laws are actively enforced, and some may be considered symbolic or unenforced. These laws are formally in effect but are typically not penalized by the jurisdiction. For example, in the United Kingdom, the Treason Felony Act 1848 made it a crime to advocate for the creation of a republic, even peacefully. However, the Human Rights Act 1998 has ensured that this law remains unenforced, as peaceful advocacy of a republic is protected speech. Similarly, in the United States, speeding in a motor vehicle is illegal, but law enforcement may choose to ignore minor offences.

The impact of unenforced laws on citizens

Additionally, unenforced laws can lead to confusion and uncertainty, especially when they are complex or contradictory. This confusion can impact both citizens and law enforcement officials, who may struggle to understand their duties and responsibilities. In some cases, unenforced laws may even be used as an excuse for arbitrary arrests or selective enforcement, placing citizens at the mercy of law enforcement. For instance, a sheriff might use a 19th-century law banning the trade of flammables during the dark time of the day to search a suspected drug lab operating under the guise of a gas station.

On the other hand, unenforced laws may also serve a purpose in certain situations. In some legal systems, the concept of desuetude applies, where a long habit of non-enforcement or lapse of time can cause a law to become obsolete and unenforceable. This can be seen as a form of legal evolution, allowing outdated or unnecessary laws to lapse without formal repeal. For example, in the United Kingdom, the Treason Felony Act 1848, which made it a crime punishable by life imprisonment to advocate for the creation of a republic, is now effectively unenforced due to the interpretation of the later Human Rights Act 1998, which protects peaceful advocacy of a republic as free speech.

Furthermore, unenforced laws may result from practical difficulties in enforcement or changing societal norms. For instance, laws requiring annual background checks for gun owners may be challenging to implement due to logistical or legal constraints. In such cases, non-enforcement may not necessarily reflect a breakdown of the rule of law but rather a recognition of the complexities involved in governing a diverse and ever-changing society.

Overall, the impact of unenforced laws on citizens is multifaceted. While it can lead to a perception of lawlessness and undermine respect for legal rules, it may also reflect the evolving nature of society and the challenges of governing a complex and dynamic community. The challenge for legal systems is to ensure that unenforced laws do not become a tool for arbitrary enforcement or a source of confusion and uncertainty for citizens.

The constitutionality of unenforced laws

The concept of unenforced laws is problematic as non-compliance may undermine the rule of law. When laws are not enforced, it can erode the authority of the law and diminish the societal code that the public has agreed to follow. This can lead to a loss of public respect for legal rules in general. An example of unenforced laws can be seen in the case of Initiative 1639, a series of gun-control measures that passed with 59% of the statewide vote in Washington in 2018. I-1639 requires secure gun storage, raises the minimum age for purchasing a semi-automatic rifle to 21, and mandates enhanced background checks. However, state officials have not implemented annual background checks of pistol and semi-automatic rifle owners and have no plans to do so. This non-enforcement of the law can send a message to the public that even if a law is passed, it is not necessarily expected to be followed.

The doctrine of desuetude, which exists in civil law traditions like Scotland, provides a legal framework for addressing unenforced laws. It states that long and continued non-use of a law renders it invalid, and courts will no longer punish transgressors. In other words, a law can become unenforceable due to a long habit of non-enforcement or the lapse of time. This doctrine has been codified in countries like Canada and Australia, which have inserted sunset clauses into their constitutions or charters of rights.

However, the doctrine of desuetude has its limitations and does not apply to all legal systems. For example, in the United States, laws that are too complex or convoluted can lead to selective enforcement or loose interpretations, resulting in overzealous prosecution or confusion among law enforcement and bureaucrats. Additionally, there may be cases where a law is not enforced due to a lack of public interest, overwhelming public support for a particular action, or the insignificance of the crime.

The use of selective enforcement by rulers

The discretionary power vested in law enforcement officers allows them to selectively enforce laws, which can result in unequal treatment and a violation of the fundamental principles of justice. This discretionary power is often inevitable and can be desirable in certain situations. For instance, it would be impractical for police officers to issue traffic tickets to every driver who exceeds the speed limit, so they may limit action to the most flagrant examples of reckless driving.

However, the biased use of enforcement discretion, such as that based on racial prejudice, corruption, or political beliefs, is typically considered a legal abuse and a threat to the rule of law. This type of selective enforcement can lead to arbitrary outcomes and favoritism, with individuals from marginalized communities facing harsher penalties while others escape accountability due to their social status or connections.

In the United Kingdom, for example, the Treason Felony Act 1848, which made it a crime punishable by life imprisonment to advocate for the creation of a republic, is no longer enforced due to the interpretation of the later Human Rights Act 1998, which protects peaceful advocacy of a republic as free speech.

To maintain ethical practices, law enforcement officers must remain objective and treat everyone equally, regardless of their behaviour. While discretion allows officers to decide when and what to investigate, they should also consider the credibility of their decisions if the case goes to court. Using discretion to charge a citizen with obsolete laws to teach them a lesson, for instance, can be seen as an abuse of authority by the police officer.

Overall, while selective enforcement by rulers may be inevitable in certain situations, it is important for law enforcement agencies to enforce laws fairly and impartially, without discrimination or bias, to uphold the fundamental principles of justice and equality.

The interpretation of unenforced laws by law enforcement

The existence of unenforced laws can have detrimental effects on society. When laws are not enforced, it can undermine the rule of law and erode public respect for legal rules. Non-compliance may be perceived as lawlessness, diminishing the societal code that the public has agreed to follow. This can create a sense of arbitrariness in the enforcement of laws, with some individuals or groups feeling that they are subject to different standards or treatment under the law. For example, in the United States, there have been instances where gun control measures, such as annual background checks for gun owners, have not been implemented or enforced by law enforcement, despite being passed with a significant majority vote.

To address the challenges posed by unenforced laws, several strategies can be considered. One approach is to regularly review and update legislation to ensure it remains relevant, enforceable, and in line with societal values. This can help prevent laws from becoming outdated or obsolete. Additionally, clear and concise legislation can reduce ambiguity and minimise the potential for selective or inconsistent enforcement. Furthermore, promoting transparency and accountability in law enforcement practices can help ensure that laws are applied fairly and consistently across the board.

Frequently asked questions