Legal Definitions - leges non scriptae

Leges non scriptae refers to laws that are not formally written down in statutes, codes, or constitutions. Instead, these laws develop over time through custom, tradition, judicial decisions, and long-standing practices. They are often deeply embedded in a legal system and are recognized as binding, even without a specific legislative act creating them.

Here are some examples to illustrate this concept:

• The Principle of Judicial Precedent: In common law systems, the rule that courts must generally follow decisions made by higher courts in similar cases (known as stare decisis). While this principle is widely understood and applied, it is not typically found as a single, explicit statute passed by a legislature. Instead, it evolved over centuries through judicial practice and custom, becoming a fundamental, unwritten rule governing how judges interpret and apply the law.

  This illustrates leges non scriptae because the obligation for judges to follow precedent is a deeply ingrained custom and practice within the legal system, rather than a specific law enacted by a legislative body.

• Constitutional Conventions: In many parliamentary democracies, there is a strong convention that the head of state (such as a monarch or president) will always grant royal assent to a bill that has been properly passed by both houses of parliament. While the head of state technically has the power to refuse, doing so would be a severe breach of an unwritten constitutional rule. There is no written law explicitly stating that assent *must* be given, but the expectation is absolute due to long-standing tradition.

  This demonstrates leges non scriptae because the binding nature of the head of state's assent comes from an established, unwritten custom and tradition, not from a specific clause in a written constitution or statute.

• Ancient Common Law Rights: Certain fundamental rights, such as the right to a fair trial or the right to be heard before being condemned, existed in common law long before they were codified into modern statutes or bills of rights. These principles developed through centuries of judicial decisions and societal expectations, becoming recognized as inherent legal protections without a single originating written document.

  This exemplifies leges non scriptae because these foundational rights emerged from the accumulated wisdom of judicial rulings and societal customs over time, rather than being created by a specific legislative act.