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:

  1. Strike down both laws
  2. Strike down one of the laws
  3. Ignore one of the laws and only apply the other
  4. Dismiss the case as untriable
  5. Attempt to reconcile the laws by ignoring the contradictory elements

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.

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    Please add if one of the two laws is older than the other (older law can be altered through newer law) and if one of the two is wider in scope than the other. – Trish Aug 11 at 13:59
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    Other than ruling out options 1 and 4, there is no general answer. The approach depends on the nature of the controversy, the details of the contradiction, the level of each law (for instance, federal versus state law), the precedent in enforcing/interpreting the statutes at issue, and so forth. Narrowing down the scope of your question would make it answerable. – Iñaki Viggers Aug 11 at 14:08
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    Do you have any evidence that trial courts discover that laws are contradictory? – user6726 Aug 11 at 14:32
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    Courts and Rabbis are very good at reconciling supposedly contradictory laws, or at least at figuring out which has precedence. Does one law implicitly repeal the other because it is younger? Is one law more specific than the other? Are there subtle differences in phrasing which the court can interpret to find a distinction? – amon Aug 11 at 15:50
  • @amon Exactly! I didn't see this until I finished my answer. Much of my answer is a gloss on yours. – Just a guy Aug 11 at 18:00

None of the above!

What you describe almost never happens. That's not because statutes never contradict each other. Statutes contradict (or appear to contradict) 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 finds 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. When statutes appear to conflict, courts interpret those conflicts away.

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, "In Massachusetts, divorce is legal and illegal." To prevent such chaos, courts presume that legislatures are not insane, so they "presume" the laws only appear 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.

To do this, the courts make use of what are known as canons of statutory interpretation. As one law professor put it, "Canons are simply interpretive guidelines which, by dint of judicial repetition, take on the appearance, if not the reality, of a legal rule." 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" or the "last-antecedent rule." (Many are in Latin: "expressio unius," "noscitur a sociis" or "ejusdem generis".

As Amon and Trish point out in the comments to the OP, there are two canons that are often used when statutes appear to conflict:

  1. Generalia specialibus non derogant: If there is a conflict between a general law and specific rule, the specific rule prevails.
  2. Newer laws amend older laws.

What if two laws really are contradictory?

In that case, the court should refuse to enforce either law. If the court picked one of the laws, it would effectively by making law. Under our system of separated powers, legislatures, not courts, legislate.

How to find out more about canons

The canons are a hot topic in law right now, largely because of Justice Scalia's insistence on the primacy of the text. His last book, "Reading Law: The Interpretation of Legal Texts," discusses the canons at length. (You can see a list of the canons he discusses here.)

Unfortunately, reading a list of canons, or articles about them, without seeing how they are used, is about as helpful as reading the rules of baseball without ever watching a game. 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 "Legislation" casebook. It devotes an entire chapter 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!

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    Of course, reading the rules of baseball is more entertaining than actually watching a game. – Dale M Aug 11 at 22:17
  • @DaleM That is pure genius! (Feel free to delete after you read.) – Just a guy Aug 12 at 0:56

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