In the US legal system, I think they have the concept of
"case law"; one
passes laws that require judgment to be applied by judges,
and then the
practice of that law becomes part of the case history.
Never using a rule is a kind of "case law" too - it's a
statement that can
be read as "none of the infractions we have seen so far
warrant actually
using the rule, so nobody who isn't behaving worse than any current
offender need fear it".
Case law is concerned with consistent interpretation of the law by the
_courts_.
What you describe is a defense based on selective prosecution, an
argument that is much more common in the US than in the UK. In fact I
don't think you could make the case in the UK until the EU declaration
of human rights became law.
Essentially the argument being made in selective prosecution is 'I am
charged with X but the real behavior I am being prosecuted for is Y
which is not illegal'. The argument only works if you have an equal
rights clause or if behavior Y is protected.
Behavior Y is frequently of the form 'membership of ethnic group Z'.
Nobody has been prosecuted for eating a sturgeon for a couple of
centuries as far as I am aware, but the act is still on the statute
books. Incidentally there is a security rationale for it, the tusk was
meant to be a cure for all known poisons. Elizabeth I paid 10,000 pounds
for one.
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