Legal Definitions - jus non scriptum

Jus non scriptum is a Latin legal term that translates directly to "unwritten law." It refers to legal principles and rules that are not formally enacted in statutes, constitutions, or other written legislative documents, but are nonetheless recognized, applied, and enforced by courts and legal systems.

These unwritten laws often arise from:

• Long-standing customs and traditions that have gained legal force over time.
• Judicial precedents, where consistent rulings by judges create a body of law that guides future decisions.
• General principles of justice, fairness, or public policy that are considered fundamental to a legal system.

Here are some examples illustrating jus non scriptum:

• The Common Law Principle of Precedent: In countries with common law systems (like the United States, United Kingdom, and Canada), judges are generally bound to follow the legal principles established in prior court decisions on similar cases. For instance, the concept of "negligence" – the failure to exercise reasonable care that results in harm to another – largely developed over centuries through a series of judicial rulings rather than a single legislative act. While specific aspects of negligence might now be codified, the foundational duty of care and its application were initially jus non scriptum, evolving through judicial interpretation and precedent.

  This illustrates jus non scriptum because the core principles of negligence were not created by a legislature writing a law, but by judges consistently applying and refining legal ideas over time, establishing a body of unwritten rules that became legally binding.

• Principles of Natural Justice: Many legal systems recognize fundamental principles of fairness, often referred to as "natural justice," even if they are not explicitly written into every statute. For example, the principle that a person has a right to be heard before a decision is made that affects their rights (known as audi alteram partem, or "hear the other side") is a cornerstone of fair administrative and judicial processes. A court might overturn an administrative decision if the affected party was not given a fair opportunity to present their case, even if the specific statute governing that administrative body didn't explicitly state this right.

  This demonstrates jus non scriptum because the requirement for a fair hearing is often an inherent, unwritten expectation of justice that courts enforce, rather than a rule found in a specific written law for every situation.

• International Customary Law: Certain rules governing relations between nations are considered binding even without a formal treaty. For instance, the prohibition against torture was widely recognized as a principle of international customary law long before it was extensively codified in international treaties. Nations were expected to abide by this prohibition based on a general and consistent practice among states, accepted as law (opinio juris), even without a specific written agreement binding all of them.

  This example shows jus non scriptum because the prohibition against torture, in its customary form, derived its legal authority from the consistent behavior and shared understanding of nations, rather than from a single, universally ratified written document at its inception.