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Question #91192 posted on 04/30/2018 1:18 a.m.

Dear 100 Hour Board,

How do they typically resolve it if it happens that two laws both on the books in a jurisdiction are in direct contradiction with each other? For example, suppose that in Stafford, Virginia there is a law on the books stating that it is lawful for a man to strike his wife on the courthouse steps as long as it is before 8:00 PM, which is of course contradictory to the laws making it unlawful to assault another person within that jurisdiction, whether on or off the courthouse steps before, at, or after 8:00 PM. If someone with standing, as in, for example, a woman who was struck by her husband on the courthouse steps in Stafford, Virginia at 7:20 PM, filed charges against her husband, and her husband's lawyer cited the dumb law, in what technical manner would they blow off the dumb law?



Dear Pedro,

I started to write an answer, stopped due to finals week, Anne wrote a fantastic answer and referenced one of my thoughts, so now I feel somewhat obligated to write something even though she answers it perfectly.

So here's three thoughts on the matter:

  1. Jury nullification. Even if someone is guilty of breaking a law, if it goes before a jury and a certain number of people think, "Yeah they're guilty, but this is a stupid law," they can vote you're not guilty and effectively nullify the law. I'm guessing that's what would happen if this kind of law came before the court. There would be enough women and men glaring daggers at the husband and voting him guilty even if the law technically said he was innocent.
  2. Public backlash. That law would be changed so quickly.
  3. Appeal to a higher court. Especially if the law is changed quickly enough (and if it's a stupid enough law it should be), the next judge up is likely to declare the husband guilty. I doubt something like that would get to the Supreme Court because they'd resolve it far before then.

As to dealing with what would actually happen with two conflicting laws, read Anne's answer below!

-guppy of doom


Dear you,


1) In order for there to be an actual conflict I'll first note that the two laws need to be not only in the same jurisdiction but probably also propounded by the same body. Otherwise, one law may preempt the other. (For example, if the "can't hit" law is a state law but the "can hit" law is part of Stafford's city code, the state's law will be enforced and the Stafford law will be invalid.) (Note 1: If there are multiple jurisdictions concerned, it can actually get fantastically complicated. See the Wikipedia article on "Conflict of laws in the United States." Conflict of Laws is an entire class in Law School, which I didn't take, so that's all you get here.) (Note: I'm not going to touch any potential state or federal constitutionality issues of a law purporting to legalize assault.) 

Guppy pointed out that this particular law (you can hit people) is stupid and you'd be likely to see public opposition and potentially quick government action to fix the fact that such a law exists. In the case of a more boring or less clearly/universally terrible law, you'd likely see judges apply various "canons of construction" in attempting to come to a decision.

This article (which I haven't read in total, FYI) by attorney Stephen Adams discusses and lists various canons, and may be of interest to you. 

If the two laws are both applicable in the jurisdiction, I'd anticipate that the judge would first attempt to determine whether the laws could be read in a way that they don't conflict. (For more reading on a related topic, you may be interested in the Wikipedia Article on Constitutional Avoidance, by which a law is generally assumed to be meant in whatever way would NOT make it unconstitutional because presumably the government didn't mean to pass an illegitimate law). The 26th canon in Adams' list is even more apropos, stating that courts should try to avoid "'repeal by implication.'"

In fact, Adams basically answers your questions in his numbers 28 and 29. Basically, since there's a conflict, we're going to favor 1) more recent laws and 2) more specific laws. So, the law saying that you can specifically hit someone at a specific time is more specific. You haven't hypothesized which is recent. Adams suggests that if the two factors cut against each other, "the best proposed interpretation will likely be the most reasonable interpretation."

There are plenty of cases where what's reasonable will be up for discussion using even more canons of construction and such. The legal concept of "reasonability" is both frequent and probably impossible to perfectly define because of subjective interpretation.

However, in this case, I think it's pretty clear that the law preventing assault and spousal abuse is more reasonable, so that's what you'd end up with assuming a "reasonable" judge.

~Anne, Certainly (not a lawyer, etc. etc.)