constitutional-law
In places where constitutions don&#39;t disallow irrational laws to be passed by a legislature, can peremptory norms override irrational laws?
<p>Has there been any case like this anywhere in the world? Or does <a href="https://en.m.wikipedia.org/wiki/Peremptory_norm" rel="nofollow noreferrer">peremptory norm</a> only apply to international law? Can courts recognise peremptory norms and customary law and does codified law take precedence over it or <em>vice versa</em>?</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="united-states-container">united-states</a></p>
<blockquote>
<p>does peremptory norm only apply to international law?</p>
</blockquote>
<p>The peremptory norm rule applies only to international law, although other legal doctrines may have a similar effect.</p>
<blockquote>
<p>Where constitutions don't disallow irrational laws passed by a
legislature , can peremptory norms override irrational laws?</p>
<p>can courts recognize . . .customary law and does codified law take
precedence over it or vice versa?</p>
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<p><strong>Rational Basis Constitutional Review</strong></p>
<p>The U.S. Constitution doesn't explicitly prohibit irrational laws. But it does provide constitutional protections that are enforced more strictly (which is to say that the laws possibly violating a right are subject to &quot;strict scrutiny&quot; in &quot;intermediate scrutiny&quot;) in some circumstances, and more leniently with more deference to the legislature in other circumstances (which is to say that the laws are subject to &quot;rational basis&quot; review). These standards of review, including rational basis review, are the product of court interpretations of the U.S. Constitution in case law.</p>
<p>Often a law will colorably violate equal protection clause of the 14th Amendment to the U.S. Constitution protections in U.S. law. If the law does so, but the non-equal treatment does not involve a 'protected class&quot;, it is subject to &quot;rational basis&quot; review for constitutionality, which is very lenient.</p>
<p>For example, the law might say that people on the north and west sides of their streets get to vote in the morning, and people on the south and east sides of their streets get to vote in the afternoon. People on different sides of the street are not treated exactly equally. But, the side of the street that you live on is not a protected class, so this law would be upheld against a constitutional equal protection challenge if there was any rational basis for it. In this case, it would probably be upheld on the grounds of administrative convenience and managing scarce election administration resources.</p>
<p>On the other hand, a law that said that black people vote in the morning and white people vote in the afternoon, since it involves race, a protected class, are subject to strict scrutiny and a law that made that distinction would be struck down.</p>
<p>So probably, would a law that said that women vote in the morning and men vote in the afternoon, since sex distinctions are usually subject to intermediate scrutiny. And, while the intermediate scrutiny standard wouldn't be met under modern U.S. law in modern U.S. conditions of society, in the circumstances of daily life of the 1880s, when women were overwhelmingly home makers in some localities, and many men worked at 9-5 jobs away from home in those localities (perhaps a mining town), the law might even have been upheld under an intermediate scrutiny standard. In reality world, cases like that more often come up, not in election law cases, but in cases where there is discrimination on the basis of gender in tee time allocations at public golf courses.</p>
<p>Also, when a law is subject to rational basis review, the reasons that the legislature passes the law, if they would be rational if true, are sufficient to validate a law even if the reasons that would make the legislation rational are not, as the legislature believed them to be, actually true as a factual matter, unless it is physically impossible for what is described to happen under a law of nature, for example (e.g., it the prison warden is ordered to hold a prisoner in a cell in which the law of gravity does not exist).</p>
<p>For example, if the law says that school children must have their route diverted if a black cat would otherwise have crossed their path, because otherwise they will have bad luck, that law could be upheld in a rational basis analysis, even though crossing the path of a black cat does not, in fact, give you bad luck.</p>
<p>Likewise, a law doesn't have to be the best or most accurate way to make a rational distinction to meet the rational basis. The fact that a better alternative way to handle the issue that the law addresses doesn't mean that it fails to survive rational basis review.</p>
<p>But if a law truly is, as the question has assumed by definition, completely irrational, it will not be found constitutional even under a rational basis test. So, if there is any colorable equal protection violation or other colorable constitutional violation subject to rational basis review, a completely irrational law will be struck down.</p>
<p>There are maybe half a dozen or a dozen cases in all of U.S. case law since the adoption of the 14th Amendment that have been found not to meet that test out of hundreds or thousands of challenges on grounds where the rational basis test applies. But on rare occasions, it does happen.</p>
<p><strong>Canons Of Statutory Construction</strong></p>
<p><em>The Canon Against Absurdity</em></p>
<p>Also, there is a canon of statutory construction against absurdity. Generally speaking, if a plain reading of a statute leads to an absurd result, a court will apply this canon of statutory construction to determine that the legislative intent was something other than what the law actually literally said even if that is the clear plain meaning of a statute.</p>
<p>This often comes up when the word &quot;not&quot; gets omitted in a complex sentence, reversing the clear intent of the law. In this situation, the canon of statutory instruction against absurdity will often supply the missing word giving the law the opposite meaning of what it irrationally actually says.</p>
<p>The canon of statutory construction against absurdity is often applicable if the statute read as it was actually adopted is irrational.</p>
<p><em>The Canon Against Interpretations In Degradation Of The Common Law</em></p>
<p>Another canon of statutory interpretation that sometimes comes into play pertinent to &quot;customary&quot; law or &quot;common law&quot; established by cases rather than a statute in the U.S., is that statutes will not be deemed to be &quot;in degradation of the common law&quot; (i.e. to override a common law rule of law) unless the legislative intent to do so is clear. So, often a law that seems odds with be interpreted in the context of a way to simultaneously honor it (even if it isn't the most natural interpretation of the language) while leaving the existing common law and equity jurisprudence established by case law in place.</p>
<p>For example, if a statute holds that someone who signs a document is bound by it, this statute would usually not be held to override the common law rule that a signature obtained through fraud about what someone is actually signing (e.g. substituting a check when someone thinks that they are signing a receipt), called fraud in the factum, would usually held not to be pre-empted and contradicted by the statute, even though the statutory does not expressly identify this common law exception to its plain language.</p>
<p>On the other hand, the degradation of the common law canon of statutory construction is usually not applied, often with irrational or absurd result, in the case of a federal statute related to employee benefits called the Employee Retirement Income Security Act (ERISA), which has been held to have extraordinarily broad pre-emptive effects.</p>
<p><strong>The General Rule Is That Stupid Or Unwise Laws Are Valid</strong></p>
<p>This said, there is a difference between irrational, and merely stupid or unwise. The legislature is free to pass otherwise constitutional law that are stupid or unwise. And, if there is no doubt, given the legislative history and the language of the statute, that the legislature really did mean what the statute says, and the statute doesn't colorable violate any constitutional right, even equal protection, it will be upheld, even if it seems bizarre or irrational.</p>
<p>For example, if it is absolutely clear that you can convict dead people of crimes and that the legislature really meant what it said when it said that if you do, the corpse of the dead person needs to be kept in a prison cell for the duration of the prison sentence, then that law would probably be upheld and enforced by a court, even though it is bizarre and crazy.</p>
<p>There are probably at least half a dozen or a dozen decided cases in which a court has said, that a law is completely stupid or unwise, but it is not colorably unconstitutional or complete irrational, and so the court upholds the law.</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>In domestic law, legislation is paramount to international law, even that which is automatically incorporated (<em>Nevsun Resources Ltd. v. Araya</em>, <a href="https://canlii.ca/t/j5k5j#par94" rel="nofollow noreferrer">2020 SCC 5 at para. 94</a>). However, as far as possible, courts will attempt to interpret domestic legislation consistently with international obligations (<em>Kazemi Estate v. Islamic Republic of Iran</em>, <a href="https://canlii.ca/t/gdwht#par60" rel="nofollow noreferrer">2014 SCC 62 at para. 60</a>), especially where the obligation is a peremptory norm (<em>Bouzari v. Iran</em>, <a href="https://canlii.ca/t/1hdv4#par65" rel="nofollow noreferrer">2004 CanLII 871 at para. 65</a> (Ont. C.A.)).</p>
<p>Parliament and provincial legislatures retain the ability to legislate contrary to <em>jus cogens</em> / peremptory norms. &quot;[W]hether Canada's obligations arise pursuant to treaty or to customary international law, it is open to Canada to legislate contrary to them. Such legislation would determine Canada's domestic law although it would put Canada in breach of its international obligations.&quot; <em>Bouzari v. Iran</em>, <a href="https://canlii.ca/t/1hdv4#par66" rel="nofollow noreferrer">2004 CanLII 871 at para. 66</a> (Ont. C.A.)</p>
