Legal Definitions - unwritten law

Unwritten law refers to legal principles and rules that are not formally enacted by a legislature as statutes or ordinances, but are nonetheless recognized and enforced by courts. It primarily encompasses two categories:

• Law derived from long-standing customs, traditions, or societal practices that have gained legal authority over time.
• Law established through judicial decisions, also known as caselaw or common law. While court opinions are written, the underlying legal principles and precedents they establish are considered "unwritten" in the sense that they are discovered and refined through judicial interpretation rather than being explicitly codified in a single legislative text.

Here are some examples to illustrate the concept of unwritten law:

• Example 1: Industry Custom in Contracts

  Imagine a specific agricultural trade where it is a long-standing and universally accepted practice for buyers to conduct a quality inspection of perishable goods within 12 hours of delivery. Even if a written contract between a farmer and a distributor does not explicitly state this inspection period, a court might recognize this established industry custom as an implied term of the contract. If a dispute arises over the quality of goods reported after 24 hours, the court could rule that the buyer failed to adhere to the customary inspection period, effectively treating this unwritten custom as a binding legal rule.

  How it illustrates unwritten law: This custom, though never passed by a legislative body, gained legal force through consistent practice and societal acceptance within that industry, demonstrating law derived from custom.

• Example 2: The "Reasonable Person" Standard in Negligence

  In personal injury cases, courts often apply the "reasonable person" standard to determine if someone acted negligently. This standard asks what a hypothetical, ordinary, prudent person would have done in similar circumstances. There isn't a single statute that exhaustively defines every action a "reasonable person" would take in every possible situation. Instead, this concept has been developed and refined over centuries through countless court decisions, where judges and juries apply community norms and expectations to specific facts.

  How it illustrates unwritten law: The "reasonable person" standard is a fundamental principle of caselaw, not a legislative enactment. Its meaning and application evolve through judicial interpretation, making it a prime example of a legal rule that is "unwritten" in its origin and development.

• Example 3: Parental Duty of Care

  The fundamental legal principle that parents have a duty to care for and protect their minor children is deeply rooted in common law. While many jurisdictions have statutes addressing child neglect or support, the underlying concept of a parent's inherent responsibility for their child's well-being existed long before these specific laws were codified. Courts have consistently upheld this duty through generations of rulings, establishing expectations for parental conduct even in areas not explicitly covered by statute.

  How it illustrates unwritten law: The broad principle of parental duty of care is a foundational element of common law, developed and affirmed through judicial precedent over centuries, rather than originating from a single legislative act. It represents a legal rule that has gained authority through custom and judicial recognition.