Unwritten Law

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Unwritten Law

Unwritten rules, principles, and norms that have the effect and force of law though they have not been formally enacted by the government.

Most laws in America are written. The U.S. Code, the Code of Federal Regulations, and the Federal Rules of Civil Procedure are three examples of written laws that are frequently cited in federal court. Each state has a similar body of written laws. By contrast, unwritten law consists of those customs, traditions, practices, usages, and other maxims of human conduct that the government has recognized and enforced.

Unwritten law is most commonly found in primitive societies where illiteracy is prevalent. Because many residents in such societies cannot read or write, there is little point in publishing written laws to govern their conduct. Instead, societal disputes in primitive societies are resolved informally, through appeal to unwritten maxims of fairness or popularly accepted modes of behavior. Litigants present their claims orally in most primitive societies, and judges announce their decisions in the same fashion. The governing body in primitive societies typically enforces the useful traditions that are widely practiced in the community, while those practices that are novel or harmful fall into disuse or are discouraged.

Much of International Law is a form of primitive unwritten law. For centuries the Rules of War governing hostilities between belligerents consisted of a body of unwritten law. While some of these rules have been codified by international bodies such as the United Nations, many have not. For example, retaliatory reprisals against acts of Terrorism by a foreign government are still governed by unwritten customs in the international community. Each nation also retains discretion in formulating a response to the aggressive acts of a neighboring state.

In the United States, unwritten law takes on a variety of forms. In Constitutional Law the Supreme Court has ruled that the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution protects the right to privacy even though the word privacy is not mentioned in the written text of the Constitution. In Commercial Law the Uniform Commercial Code permits merchants to resolve legal disputes by introducing evidence of unwritten customs, practices, and usages that others in the same trade generally follow. The entire body of Common Law, comprising cases decided by judges on matters relating to torts and contracts, among other things, is said to reflect unwritten standards that have evolved over time. In each case, however, once a court, legislature, or other government body formally adopts a standard, principle, or Maxim in writing, it ceases to be an unwritten law.

Cross-references

Case Law; Trade Usage.

References in periodicals archive ?
the unwritten law of nations with respect to safe-conducts.
(37.) See, e.g., 1 ZEPHANIAH SWIFT, A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT 39 (1795) (indicating that "the dictates of reason[ ] and the science of morals" supplied "first principles" of the unwritten law, though acknowledging that "our courts have erected an artificial fabrick of jurisprudence" on the foundation of these principles); see also JOSEPH HOPKINSON, CONSIDERATIONS ON THE ABOLITION OF THE COMMON LAW IN THE UNITED STATES 19, 21 (1809) (calling the common law "the law of reason and justice").
Yet if a determinist rendering of responsibility prevailed in court, the pre-modern melodrama of the unwritten law remained powerfully explanatory; Thaw was hailed by many as a hero upon his release from Matteawan Asylum.
Taken together, the accounts evidence the waning influence of the Old South's unwritten law over the years, but also suggest that vestiges of the unwritten law remain.
Likewise, Greek immigrant Achilles Pantarakas, upon discovering that his friend George Barbaresos had "made love to my wife," determined that killing him "was a justifiable execution of the unwritten law." (41) Pantarakas explained that "I took my ax in my hand and with the ax split his skull.
The unwritten law involved notions of fair fights between equals, but equals in rank as well as sex and physique.
The unwritten law here is, we only use the gun laws to prosecute the bad guys." De facto, the unwritten laws are not worth the paper they are printed on, Call it "Ayoob's Law Number Ten."
Set in Ilheus, the coastal city of Amado's birth, the novel unfolds the development of a love story within the struggles of Ilheus between its adherence to traditional codes of conduct--central among them, the unwritten law that a cuckold must avenge his honor by killing the adulterous wife and her lover--and the forces of progress, which bring with them calls for social change.
Antigone's punishment for believing that the unwritten law of the heart is above human law is worse still.
Do they not understand the unwritten law of car wash etiquette?
She has since recovered, mainly by following the unwritten law of Big Brother that states she who shouts loudest makes it into the edited highlights.
of the unwritten law in force in each state, however, addressed