Definition
To repeal is the act by which a legislature formally annuls or voids an existing law or statute through the enactment of a subsequent law. When a law is repealed, it ceases to have legal force from the moment the repealing act takes effect, unless the repealing legislation specifies otherwise.
Repeal is a legislative act — it belongs exclusively to the legislature that has authority to enact law in the relevant jurisdiction. Courts interpret repeals; they do not perform them.
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Common Language
Modern common usage (Wiktionary): To revoke, withdraw, or rescind; to take back something previously granted or said.
Historical common usage (Webster's 1913): "To recall, as a deed, will, law, or statute; to revoke; to rescind or abrogate by authority, as by act of the legislature."
The common meaning tracks the legal meaning closely, but the gap that matters for research is one of exclusivity: in ordinary speech, "repeal" can describe any revocation by any party. In law, repeal is a formal act of legislative authority. An executive order cannot repeal a statute. A court ruling that a statute is unconstitutional does not repeal it — the statute remains on the books, merely unenforceable. That distinction has significant consequences when tracing the effective status of historical laws.
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Common Confusion
Repeal is frequently confused with two related but distinct concepts:
REPEAL vs. AMENDMENT: An amendment modifies the text of an existing law while leaving it in force, as changed. A repeal removes the law entirely. A law can be amended so substantially that it effectively replaces its predecessor, which is sometimes called repeal by substitution or legislative replacement — but technically the amended law continues in existence.
REPEAL vs. INVALIDITY (judicial nullification): When a court holds a statute unconstitutional, the statute is rendered void and unenforceable, but it has not been repealed. The text may remain in compiled codes, and if the constitutional defect is later removed (by constitutional amendment or a change in judicial interpretation), the question of whether the statute "revives" becomes live. Repeal, by contrast, permanently extinguishes the law unless the repeal itself is later repealed and revival is expressly addressed.
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Recognized Forms
/SUBTYPES
Express repeal: The repealing statute explicitly identifies and voids the earlier law by name, section, or reference. The clearest and least ambiguous form.
Implied repeal: No explicit reference is made to the earlier law, but the new statute is so inconsistent with or comprehensive relative to the prior law that both cannot stand simultaneously. Courts disfavor findings of implied repeal and require a clear and irreconcilable conflict before so holding.
Repeal by substitution: A prior law is simultaneously repealed and replaced by a new enactment covering the same subject matter. Common in major legislative overhauls.
Partial repeal: Only identified provisions or sections of a statute are repealed, leaving the remainder in force.
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Why It Matters in Research
The central trap in historical legal research involving repeal is the assumption that a law found in a historical code or compilation was still operative at the time under study. Statutes were often slow to be removed from printed codes after repeal, and older digests and compilations may reproduce laws without noting their subsequent repeal. Always verify whether the statute you are reading was in force at the relevant date by checking the session laws and any subsequent legislative action.
Implied repeal creates particular difficulty. Because no repealing act is directly identifiable, implied repeals are discovered through case law that construes the relationship between two statutes — meaning the repeal is invisible in the statutory record alone. Researchers cannot rely on code annotations exclusively; contemporaneous case law must be examined.
The distinction between repeal and constitutional invalidation matters acutely when researching Prohibition-era and post-Prohibition law. The Twenty-First Amendment repealed the Eighteenth Amendment — a constitutional repeal by constitutional amendment. State and federal statutes enacted pursuant to the Eighteenth Amendment were not automatically repealed by the Twenty-First Amendment's ratification; they required separate legislative action to be removed. This created a patchwork where state and local alcohol regulations remained operative long after federal Prohibition ended.
The Burrill entry correctly notes the literal sense — "to call back" — which reinforces that repeal is a prospective legislative withdrawal, not a retroactive erasure. This matters for rights and obligations that vested under the repealed law before the repeal took effect.
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Historical Dictionary Support
Burrill's Law Dictionary traces "to repeal" to the Law French repealer / repeller, meaning to call back or re-summon. Burrill's gloss — "to annul a law or statute by a subsequent one; literally, to revoke or recall it" — captures the essential mechanics accurately and reflects the classical understanding that repeal requires a successor legislative act. The entry cross-references Repealer and Repeler, terms used in older legal writing that a researcher will encounter in historical sources.
What Burrill does not address — as is common in nineteenth-century legal dictionaries — is the doctrine of implied repeal, the distinction between legislative repeal and judicial invalidation, or the question of revival. These doctrines, now central to statutory interpretation, developed substantially through case law and would need to be traced through treatises on statutory construction (such as Sutherland on Statutes and Statutory Construction) and judicial opinions for any serious historical research project.
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Jurisdictional Note
The basic mechanics of repeal are uniform across American jurisdictions — repeal requires legislative action and takes effect as specified in the repealing act. However, state constitutions vary in whether they address revival of repealed laws. Some state constitutions include anti-revival clauses providing that a repealed statute does not revive merely because the repealing act is itself later repealed. Federal law and many states follow this rule by statute or common law of statutory construction, but researchers should verify the rule operative in the jurisdiction and period under study.
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Encyclopedia Cross-Reference
"Prohibition and Repeal — The Eighteenth and Twenty-First Amendments" (The Law Mind Constitutional Law Encyclopedia) — addresses the most significant instance of constitutional repeal in American history, with direct relevance to the relationship between constitutional amendment and statutory law that remained on the books after repeal.
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