LEX SCRIPTA

Definition

Lex scripta (Latin: "written law") refers to law that derives its force from express legislative enactment rather than from custom or usage. It is the body of written, formally enacted law — statute law — as distinguished from lex non scripta, the unwritten law of custom and common law tradition. In Roman and early English legal usage, lex scripta also carried a secondary meaning: the Roman civil law itself, as opposed to the feudal and customary laws of medieval Europe. Burrill notes this usage in citing the Feudal Libri, where lex scripta denotes the Roman law specifically. The term reflects an important organizing principle in legal thought: that law either derives its authority from a deliberate act of inscription and enactment, or from long-established practice and judicial recognition. Lex scripta sits firmly on the enacted side of that divide.

Common Confusion

Lex scripta is frequently paired with — and distinguished from — its counterpart lex non scripta. Researchers should not assume that "unwritten law" means law that was never recorded. Lex non scripta (the common law and customary law) was extensively recorded in year books, reporters, and treatises. The distinction is not about physical writing but about the source of legal authority: enacted legislation versus custom recognized by courts. Confusing the two concepts distorts how historical sources discuss the relationship between statute and common law, particularly in English legal writing from the seventeenth through nineteenth centuries.

Why It Matters in Research

The lex scripta / lex non scripta distinction is foundational to understanding how English and early American legal writers organized the sources of law, and it appears persistently in historical treatises, judicial opinions, and constitutional commentary through the nineteenth century. Researchers working in pre-twentieth-century American sources — particularly constitutional debates, state court opinions, and treatises on statutory construction — will encounter this pairing as a standard analytical framework. Blackstone's Commentaries, which both Burrill and Black's cite directly (1 Bl. Comm. 62, 85), treats this division as the primary taxonomy of English law. Because Blackstone was the dominant legal text in early America, this framing shaped how American lawyers and judges thought about the authority of statutes versus common law rules. The secondary Roman law meaning creates a trap for researchers. In feudal legal sources and some continental-influenced texts, lex scripta does not mean "any written statute" but refers specifically to Roman civil law as a body. Burrill flags this usage explicitly. A researcher encountering lex scripta in a medieval or early modern feudal law context should not assume it refers to domestic legislation. The maxim quoted in Rapalje & Lawrence — "Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est" (if the written law is silent, that which is drawn from manners and custom ought to be observed) — appears in early English reports and illustrates how the two categories were understood to operate hierarchically and in sequence. This maxim has relevance to historical research on statutory gaps, judicial gap-filling, and the authority of custom in early common law jurisdictions. Modern legal writing rarely uses the Latin term; it has been displaced by plain references to "statute," "statutory law," or "enacted law." Researchers should be alert that when nineteenth-century sources discuss the limits of lex scripta, they are often making arguments about the residual authority of common law rules that no statute has displaced — a question that remained live in American jurisdictions well into the twentieth century.

Historical Dictionary Support

The shelf sources agree precisely on the core definition: lex scripta is written, enacted law deriving its authority from express legislative act, not from custom. All four dictionaries cite or echo Blackstone's formulation, and Burrill and Bouvier both preserve the additional explanatory note — drawn from Hale's History of the Common Law — that lex scripta is so called because the law is "reduced into writing before it is enacted or receives any binding power." This detail is instructive: it locates the significance of writing not in the existence of a physical record after the fact, but in the prior drafting and formal enactment process itself. Burrill alone captures the Roman law secondary meaning, citing the Feudal Libri. Bouvier cross-references JUS EX NON SCRIPTA (the law from unwritten sources) as the natural counterpart and directs readers to STATUTE LAW, reflecting Bouvier's characteristic approach of building a network of cross-references rather than fully elaborating each entry. Rapalje & Lawrence provide the most practically useful contribution by quoting the maxim governing the relationship between written law and custom, giving researchers a working formula that appeared in actual legal argument. What the historical sources do not address: the modern complexities of administrative regulation, which occupies a middle position — formally enacted through delegated authority but not always fitting neatly into traditional lex scripta categories. Researchers importing the historical framework into modern regulatory analysis should proceed carefully.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Sources of Law; Common Law and Statute; Roman Law in English Legal Tradition

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