No doubt you've heard various laws cited by people that are ridiculous. You know the ones: illegal to sell toothpastes on Sundays, illegal to tie a giraffe to a lamppost, all of those ludicrous things. But have you ever wondered how they came to be? In common law countries, I believe this is the answer.


The law is not a simple "list" of actions that are or are not illegal. In countries with the system of common law, there exists two ways of passing law: legislation, and case law. When the law is generally talked about, we often refer to legislation, statutes passed that govern certain things, such as the sale of alcohol. Law is not easy, but this part is.

This case is a simple one. The Act means what it says, and, what is more important, it does not mean what it does not say. -Secretary, Department of Health v Harvey 21 ALD 393 per Meagher JA

What I mean is that legislation, compared to case law, is simple to figure out. Case law is built on precedent: past court rulings. The doctrine of precedent is used to preserve consistency within the law.


From case law, I believe these "dumb" laws have arisen. In using case law, there is a massive amount of interpretation required, often much more than legislation. This is where lawyers come in. They can defend people against the quagmire of multiple interpretations of case law. In a judgment, there is a ratio decidendi, the reason for the decision. This is the rationale for the judgment. Also, there may be obiter dicta, remarks made in passing. They may be influential, but ultimately do not make case law. They are often unrelated observations. It is quite a task to interpret this law.


Now, how do these dumb laws come to be? Take, for example, this dumb law example: "it is illegal to wear rollerskates to the bathroom." On the face of it, this is an absurd law! You think to yourself, "why would they pass this rubbish?" And with that, you realise you're talking about legislation. Indeed, why would they pass something so ridiculous? The answer? They didn't. Chances are, this dumb law did not arise out of legislation.

Instead, I believe a law like this could very well have risen out of case law. Let's have a hypothetical situation. In this restaurant, all waitresses are required to wear rollerskates at all times as part of the uniform. One unlucky waitress needs to visit the bathroom, and having to wear the uniform, she cannot take her rollerskates off. This leads her to an unfortunate accident. She sues, and the judge rules that the restaurant pay for damages.


And thus, case law is born. The ratio decidendi in this hypothetical situation is, for the sake of argument, that the restaurant requiring a waitress to wear a uniform unfit for the tasks required, was a breach of duty of care for employees. Now, this all seems simple, doesn't it? She was forced to use a uniform, and because of it, she suffered an accident.

You're probably thinking, "so where the hell does it say rollerskates in bathrooms are illegal?" Fair point. When considering precedent, there are many approaches for interpretation. For this example, we'll just focus on the range of interpretation.

For precedent to work, it has to be applicable to future cases, otherwise, there is no point to it. In this case, it seems the most applicable interpretation, without being too wide or too narrow, is that a business has failed to supply a proper uniform for their task. Normally, this would be a good precedent to apply.


So where did this dumb law come from? No doubt, from people not knowledgeable about law, falsely interpreting things too narrowly. An imaginative person who likes to circulate rumours could therefore interpret from this case, that it is clearly illegal for someone to wear rollerskates to the bathroom. And it would have an element of truth to it. It would be devoid of context, but an element of truth nonetheless.


This is where I believe various dumb laws can originate. When people interpret case law too narrowly and cut out the context, all sorts of crazy laws can be "created" with a semblance of relevance and authority.

So when you come across a dumb law, don't dismiss it as pure bullshit. It may very well have a grain of truth to it, but remember that what you read might just be a soundbite for people to laugh at the perceived ineptitude of the law.