By Jerameel Kevins Owuor Odhiambo
“The law is reason, free from passion,” Aristotle once declared, which makes one wonder what he’d say about statutes prohibiting women from wearing patent leather shoes lest they offer gentlemen an accidental peep show, or mandating that fried chicken be eaten with bare hands. Perhaps he’d revise: “The law is reason, free from passion, until it isn’t, whereupon it becomes a zombie that refuses to die.”
We live in an age of bewildering technological velocity, where artificial intelligence writes poetry and cars drive themselves, yet our legal systems remain cluttered with the statutory equivalent of your grandmother’s attic full of things nobody uses but everybody’s too sentimental (or lazy) to discard. Consider that in Alabama, it remains illegal to possess stink bombs, punishable by up to a year in jail. In Connecticut, one must ensure their pickle bounces when dropped, lest they run afoul of a 1948 anti-fraud law. And heaven help you if you’re caught eating fried chicken with a fork in Gainesville, Georgia, where this gastronomic transgression technically violates municipal ordinance though enforcement typically takes the form of ceremonial “arrests” complete with honorary titles like “Georgia Poultry Princess.”
These aren’t mere curiosities for listicles and dinner party conversation. They represent a profound failure of legal hygiene, a collective unwillingness to acknowledge that laws, like milk, have expiration dates. Desuetude, the legal doctrine by which statutes become unenforceable through long disuse has been largely rejected in American jurisprudence, unlike in Scotland and certain civil law traditions where courts can recognize that dead letter laws have no business governing the living. Simon Greenleaf, the 19th-century Harvard jurist, wrestled with this very question: what do we do with obsolete statutes, ranging from “the first stage of neglect, to the deepest slumber of forgetfulness”?
The academic response has been tepid at best. While West Virginia recognizes desuetude for malum prohibitum offenses under specific conditions, long non enforcement, open violation, and conspicuous non-enforcement most American courts treat unenforced laws like Schrödinger’s cat: simultaneously dead and alive until someone bothers to check. The result? A system where law enforcement officials effectively legislate by choosing which antiquated statutes to enforce, disturbing the separation of powers. You’re breaking some law right now, dear reader. You just don’t know which one.
This isn’t merely an inconvenience it’s a constitutional crisis in slow motion. When Connecticut’s anti-contraception laws went unenforced for decades, Justice Frankfurter noted in Poe v. Ullman that “deeply embedded traditional ways of carrying out state policy or not carrying it out are often tougher and truer law than the dead words of the written text.” Translation: we’ve created a legal system where the emperor has no clothes, but everyone pretends his wardrobe is magnificent.
Of course, the irony is delicious. We obsess over legal formalism, textualism, originalism, strict constructionism as if the law were holy writ handed down from Mount Sinai, yet we simultaneously maintain statutes that would make the authors of The Onion jealous. In Arkansas, one must pronounce the state’s name correctly (“Ark-an-saw”) with specific syllabic emphasis, though the statute wisely imposes no penalty, perhaps recognizing that linguistic enforcement would be a fool’s errand even by the standards of laws prohibiting ice cream cones in back pockets.
The problem isn’t that these laws are merely silly though they are spectacularly so but that they create potential for abuse and cause a lack of respect for laws by the public. When someone can technically be prosecuted for sitting on a sidewalk in Galveston (that’ll be $500, please) while actual harm goes unaddressed, we’ve created a system that resembles less a coherent legal framework than a game of regulatory whack-a-mole. As University of Cincinnati Law Review Associate Member Mallory Perazzo argues, these outdated laws prevent innovation, as entrepreneurs risk becoming criminals when trying something new.
But here’s where the plot thickens: this isn’t just about bear-wrestling bans in Alabama or the prohibition against falling asleep under hair dryers in Florida. The same dynamic afflicts serious legal regimes. Consider how scholars Samuel Becher and Anne-Lise Sibony have documented the corporate strategy of “planned obsolescence” deliberately designing products to fail noting that manufacturers now employ strategies making products prematurely obsolete, from smartphones that malfunction after updates to printers that fail after a limited number of pages. The legal response? Virtually nonexistent in America, despite the Environmental Law Institute’s observation that planned obsolescence “contributes to a culture of wastefulness by perpetuating a ‘buy new and buy often’ mentality.”
So we have a legal system that maintains elaborate rules about pickle bounciness and chicken-eating etiquette, yet struggles to address actual harms affecting millions of consumers and the environment. It’s rather like being meticulously concerned about the arrangement of deck chairs while the Titanic takes on water.
The scholarly literature offers a depressing consensus: white-collar crime scholars disagree on what constitutes “crime,” with some including only criminal law violations while others focus on harmful behavior not necessarily regulated by law. Meanwhile, Edward Coke recognized in his 1628 Institutes that desuetude could alter or obsolete certain provisions through disuse, a wisdom we’ve somehow managed to forget over the subsequent four centuries.
Perhaps most telling is the case recounted in the Florida Law Review about Mississippi’s Prohibition laws, where the state continued enforcing alcohol prohibition long after it had become a farce, with Louisiana literally knocking off its liquor tax for black-market trade with Mississippi dealers. The absurdity reached such heights that the Mississippi Tax Commission had bootleggers mail invoices for taxation purposes, stamping illegal liquor with “The Great Seal of the State of Mississippi.” One imagines future archaeologists puzzling over this like anthropologists studying cargo cults.
What’s the solution? Sunset clauses automatic expiration dates for legislation represent a statutory codification of desuetude, forcing periodic re-examination of whether laws still serve their intended purpose. Canada adopted this approach in 1982; Australia followed in the 1990s. Yet in America, we cling to our legislative flotsam like hoarders convinced that yes, we might need that law about not educating dogs in Hartford, Connecticut someday. The alternative is to embrace what legal philosopher Stephen Sachs calls “unauthorized legal change” acknowledging that legal systems must account for changes not explicitly authorized, lest we pretend that only formal amendments can alter legal reality. But this requires admitting something uncomfortable: that law is a living, breathing organism requiring periodic pruning, not a taxidermied monument to past anxieties.
In the end, the persistence of obsolete laws reveals less about legal theory than about human nature. We’re creatures of habit, institutional inertia, and a peculiar terror of letting go. It’s easier to leave outdated statutes on the books than to admit we got something wrong, that circumstances changed, that what made sense when horses were primary transportation now makes approximately zero sense in the age of autonomous vehicles.
But every law we refuse to sunset, every ridiculous statute we allow to calcify, every archaic prohibition we maintain “just in case” contributes to a legal system that increasingly resembles a Rube Goldberg machine complicated, impressive in its baroque elaboration, and fundamentally incapable of accomplishing its stated purpose. The question isn’t whether we have the right to maintain laws about pickle physics and poultry etiquette. The question is: don’t we deserve better? Don’t we deserve a legal system that serves us, rather than one we serve like supplicants before inscrutable gods?
As Simon Greenleaf understood, there are statutes that are “dead bodies, from which the soul of public opinion has departed.” It’s time we gave them a proper burial and made room for laws that might actually address the problems of citizens living in this century, not the last. Otherwise, we’re just cosplaying as a functional legal system and the joke, ultimately, is on us.
The writer is a social commentator
John Kamau 
Mt Kenya Times