Legal Definitions - lex non scripta

Lex non scripta, a Latin term meaning "unwritten law," refers to legal principles and rules that are not formally enacted by a legislative body (like a parliament or congress) but instead derive their authority from long-standing customs, traditions, and judicial decisions. It is essentially the body of common law, which evolves through court rulings and societal practices, as opposed to statutory law, which is explicitly written and passed by lawmakers.

Here are some examples illustrating lex non scripta:

• Common Law Precedent in Negligence Cases: Imagine a court case involving a new type of digital service where one party claims the other acted negligently, causing them financial harm. There might not be a specific statute that directly addresses negligence in this exact digital context.

  In such a situation, the judge would look to previous court decisions (precedents) concerning negligence in other contexts, even if those cases involved physical services or different technologies. The judge would apply the established common law principles of "duty of care," "breach of duty," and "causation" that have been developed over centuries through judicial rulings. This application of judicially established principles, rather than a specific written statute, is a prime example of lex non scripta.

• Recognition of Traditional Easements: Consider a rural community where, for generations, residents have had an unwritten understanding that they can cross a particular private field to access a public walking trail, and this practice has been openly accepted by successive landowners.

  If a new property owner tries to prevent this long-standing practice, a local court might recognize this traditional right as a form of customary law, known as a prescriptive easement. Even without a specific written agreement or statute granting this right, the court could uphold the community's access based on the consistent, long-standing custom that has been tacitly accepted and acted upon by the community and previous landowners. This recognition of a traditional practice as having legal force demonstrates lex non scripta.