Last week, I wrote about a bill, AB 129, currently pending in the California legislature that would amend California Corporations Code Section 107. As I had pointed out in an even earlier post last May, that statute prohibits any corporation, flexible purpose corporation, association or individual from issuing or putting in circulation, as money, anything but the lawful money of the United States. The statute dates back to Article XII, Section 5 of the 1879 California Constitution, but it attracted my attention in light of the attention being paid to Bitcoin.
The Assembly floor analysis of AB 129 included the following comment: “However, the Assembly Banking and Finance Committee is unaware of any prosecutions, arrest or enforcement actions relating to this statute.” This, of course, set me to thinking about the question of whether laws have an expiration date.
For an answer, I consulted (what else?) the Pandects, a collection of legislation by the Roman emperors beginning with Hadrian. The collection itself was compiled under the order of the Emperor Justinian and first published in 533 C.E. Here’s the answer that I found:
Inveterata consuetudo pro lege non immerito custoditur, et hoc est ius quod dicitur moribus constitutum. nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? quare rectissime etiam illud receptum est, ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.
Long-standing custom is not undeservedly observed as law, and this is law that is said to have been founded by customs. Because statutes are binding on us for no other reason than having been accepted as the judgment of the people, it is appropriate that what the people have judged fitting without any writing will bind everyone: for what interest is it that people declare their will by vote or by the things that they have been doing? Wherefore it is even more correct that the following is accepted: laws are abrogated not only by the vote of the legislature, but also by the silent consensus of all through non-use.
Digest, I.3.32.1 (my translation). In case the point is lost in my translation, it is that laws cease to be laws when they are no longer observed and that laws that reflect what people actually do have as great, if not greater, force of law.