united-states interpretation
Contradictory laws and bench nullification?
<p>If during a trial two laws are found to be contradictory in whole or in part, what is the proper conduct of the court? Some of the possibilities would be:</p>
<ol>
<li>Strike down both laws</li>
<li>Strike down one of the laws</li>
<li>Ignore one of the laws and only apply the other</li>
<li>Dismiss the case as untriable</li>
<li>Attempt to reconcile the laws by ignoring the contradictory elements</li>
</ol>
<p>It would seem that option #3 is the one mostly commonly chosen (got to put the guy in jail somehow, right?) but least legally defensible. I would guess that such a decision could be appealed.</p>

<p><strong>None of the above!</strong></p>
<p><strong>What you describe almost never happens.</strong> That's not because statutes never contradict each other. Statutes contradict (or <em>appear to contradict</em>) each other all the time – lawyers take advantage of this, arguing the statute that seem to favor their client is the relevant one. What almost never happens is that a court <em>finds</em> that two statutes (or even two parts of the same statute!) really do contradict each other. Courts can do this because almost every statute can be interpreted in different ways. <strong>When statutes appear to conflict, courts interpret those conflicts away.</strong></p>
<p>The logic that courts use to justify interpreting statutes this way is simple. They start by assuming that it would be insane for a legislature to pass laws that conflict. Imagine what would happen in Massachusetts if the legislature said, &quot;In Massachusetts, divorce is legal <em>and</em> illegal.&quot; To prevent such chaos, <em>courts <strong>presume</strong> that legislatures are not insane</em>, so they &quot;<em>presume</em>&quot; the laws only <em>appear</em> to contradict each other because they are being misinterpreted. Court use this presumption to correct those misinterpretations by showing that, when interpreted correctly, the statutes are consistent, not contradictory.</p>
<p>To do this, the courts make use of what are known as <strong><a href="https://en.wikipedia.org/wiki/Statutory_interpretation#Canons" rel="nofollow noreferrer">canons</a> of statutory interpretation.</strong> As one law professor <a href="https://www.nyujlpp.org/wp-content/uploads/2012/10/Frickey-Interpretation-on-the-Borderline-Constitution-Canons-Direct-Democracy.pdf#page=24" rel="nofollow noreferrer">put it</a>, &quot;Canons are simply interpretive guidelines which, by dint of judicial repetition, take on the appearance, if not the reality, of a legal rule.&quot; There are canons explaining how to deal with everything from the words in a list to conflicts between statutes. Some canons are so commonly used that they are known by their nicknames, such as the “canon against superfluity&quot; or the &quot;last-antecedent rule.&quot; (Many are in Latin: &quot;<em>expressio unius,</em>&quot; &quot;<em>noscitur a sociis</em>&quot; or &quot;<em>ejusdem generis</em>&quot;.</p>
<p>As Amon and Trish point out in the comments to the OP, there are two canons that are often used when statutes <em>appear</em> to conflict:</p>
<ol>
<li><em>Generalia specialibus non derogant:</em> If there is a conflict between a general law and specific rule, the specific rule prevails.</li>
<li>Newer laws amend older laws.</li>
</ol>
<p><strong>What if two laws really are contradictory?</strong></p>
<p>In that case, the court should <em>refuse to enforce either law.</em> If the court picked one of the laws, it would effectively by making law. Under our system of separated powers, legislatures, not courts, legislate.</p>
<p><strong>How to find out more about canons</strong></p>
<p>The canons are a hot topic in law right now, largely because of Justice Scalia's insistence on the primacy of the text. His <a href="https://store.legal.thomsonreuters.com/law-products/Textbooks/Scalia-and-Garners-Reading-Law-The-Interpretation-of-Legal-Texts/p/100022429" rel="nofollow noreferrer">last book</a>, &quot;<em>Reading Law: The Interpretation of Legal Texts,</em>&quot; discusses the canons at length. (You can see a list of the canons he discusses <a href="https://www.law.uh.edu/faculty/adjunct/dstevenson/2018Spring/CANONS%20OF%20CONSTRUCTION.pdf" rel="nofollow noreferrer">here</a>.)</p>
<p>Unfortunately, reading a list of canons, or articles about them, without seeing how they are used, is <em>about as helpful as reading the rules of baseball without ever watching a game</em>. The best way to learn how canons are actually used is to read a law school casebook. For canons, the best choice is Williams Eskridge's &quot;<a href="https://faculty.westacademic.com/Book/Detail/128705" rel="nofollow noreferrer">Legislation</a>&quot; casebook. It devotes an entire <a href="https://3668083.app.netsuite.com/core/media/media.nl?id=3724791&amp;c=3668083&amp;h=ee11208fbfc07743667a&amp;_xt=.pdf#page=6" rel="nofollow noreferrer">chapter</a> to the canons, including many (edited) examples of real decisions using them. And, since the canons change only slowly, you don't need the latest edition -- earlier editions are available for almost nothing ($3.51) online!</p>
