Are there any non-conventional sources of law?

Question

The usual sources of law are specific laws created through a legislature and the executive, but are there any sources of law that aren't dependent on an organization or polity?

For example, something like customary law, but broader.

Answer 1

There is no one answer, but here are some examples.

India is famous for deriving general principles of more important constitutional law concepts that can be used to find constitutional amendments to be unconstitutional.

The U.S. has not gone to that extreme but does derive constitutional protections for the overall scheme of the constitution and from the legal context of the nation when constitutional provisions were enacted that don't obvious flow from the text of the legislation (e.g. the 11th Amendment to the U.S. Constitution) has been interpreted to establish state sovereign immunity that the text of that amendment does not expressly provide for).

Another somewhat weird source of law in the U.S. (constitutional at the federal level and usually common law at the state level) is that the 21st century right to a jury trial in a civil case depends upon whether the claim would have been litigated in England in 1789 in the courts of law or the courts of chancery in England.

Customary international law is a thing. It also often arises from international practices or diplomatic norms, rather than tribunal adjudications.

In the jurisprudence of the legislative process and some aspects of federalism, historical practices that have not been litigated are frequently resorted to as a source of law. For example, the question of whether a legislature is in recess has been resolved based upon historical practice.

Prior to the French Revolution, customary practice was an important source of law in France. Customary practice was an important source of the English common law.

In many British colonies and former British colonies (e.g. South Africa and Kenya and Sudan), lower tribal or village courts were often expressly permitted to apply local custom in their decision making.

In the U.S., a collection of secondary authority texts compiled by the American Law Institute, an affiliate of the American Bar Association, called the Restatements, which summarize in codified form, various subjects in common law, are often used by courts as a source of law where there is no case law on point in a jurisdiction.

In civil law countries, the leading legal treatises of law professors are an important source of interpretive authority of the civil code and other major codification of the law.

Most Islamic countries provide in their constitutions that Islamic law is the highest authority and supersedes any secular law including other provisions of the constitution to the contrary.

In many parts of the United States, mostly in the west, but also in Florida and Louisiana, property rights arising under Spanish/Mexican law, or under Native American law continue in force even though they derived from legal systems other than U.S. statutes and common law. See, for example:

Tribe: We have "aboriginal title" to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the "sovereign" (the U.S.) has never properly taken them away, so they're still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There's still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits.

(Source)

Answer 2

There is the concept of natural law. The idea of natural law is that certain law can be derived solely from ethics and innate human intuition of "right" and "wrong".

US law still has allusions for natural law. For example, the declaration of independence begins with "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights". The declaration doesn't give people unalienable rights, it merely affirms that people already have those rights due to natural law.

A practical legal concept based on natural law is that of jury nullificaton where a jury can decide to just ignore the written law when they believe it to be blatantly unjust in this particular case.

Natural law was also used as legitimization for the Nuremberg Trials. Although the Nazi leaders did not commit any crimes according to the written law of Germany (written by them), and international law like the universal declaration of human rights did not exist yet, they were still tried for committing "crimes against humanity". Deeds so heinous that their injustice was self-evident and no legal code written by any legislative authority was required to punish them.

Answer 3

In South Africa we also have Indigenous Laws

I suspect that by all definitions of 'non-conventional' this would apply. The sources of South African law in descending order of authority are as follows...

• The Constitution - the supreme law of the country (s 2 of the Constitution) legislation (acts of the national and provincial legislatures, and governmental regulations)

• Common Law

• Judicial Precedent

• Customary / Indigenous Law

These being defined as follows.Indigenous law has been defined by the Constitutional Court of South Africa in as having three different forms: law practised in the community; law in statutes, case law or textbooks on official customary law; and academic law that is used for teaching purposes (Bhe v Magistrate Khayelitsha [2005] 1 SA 580 (CC) at [152]).

• Religious Personal Laws
• International Law
• The writings of authoritative publicists of the law.

SOURCE

Answer 4

In New Zealand we have https://www.data.govt.nz/toolkit/data-ethics/nga-tikanga-paihere/what-are-tikanga/--"appropriate customary practices or ‘layers of the culture’ developed by Māori communities and individuals and informed by common cultural values and concepts". Last year our Supreme court allowed an appeal to proceed, despite the death of the appellant, on the grounds that

Under tikanga, Ellis would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa[lineage], rather than an individual's life.

AFAIK the appellant was not a Maori, so there is a precedent that tikanga applies to everone in NZ.

Answer 5

canada

I will list various sources of law recognized in Canada. Whether you consider these sources "unconventional" depends on your perspective. To many people, these are very conventional and obvious sources of law, but I take it from your question you are asking for non-statutory sources.

• common law (including equity), including private obligations such as contract
• the law of England, as it existed at a specified time near a colony's entrance into the Confederation, unless altered or otherwise inapplicable due to local circumstances (for example, see British Columbia's Law and Equity Act, s. 2)
• doctrine (especially in the civil law tradition in Québec)
• the Constitution, including unwritten constitutional principles and constitutional conventions
• Indigenous law
• customary international law
• treaties

Answer 6

england

In England there is a recognised notion of "Common Law", whereby certain rules/laws have been established via precedents set by judges. A very simple example is use of force in self-defence, which is effectively formulated as

Self-defence applies where the defendant uses necessary, reasonable and proportionate force to defend themselves or another from imminent attack

The basic principles of self-defence are set out in Palmer v R, [1971] AC 814; approved in R v McInnes, 55 Cr App R 551:

"It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary."

_{Reference: https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime}

Answer 7

germany

While the typical role of the jurisdiction is to interpret the written law, court decisions can factually be an equivalent of legislation. In common law jurisdictions, this process is an important and integral part of the development of the law: This is called case law, as Aleks mentioned in his answer. In addition and beyond, and indeed instead of written laws, in common law jurisdictions like England court decisions are one important power developing the law by establishing precedence.

But even in civil law jurisdictions which depend much more on written law, for example continental Europe, court decisions can develop the law to an extent which is normally the prerogative of the legislature. A rather prominent example is a ruling of the German constitutional court which established a human right not mentioned at all in the constitution: The right to informational self-determination. The ruling derived a protection against unreasonable data acquisition from the inviolable human dignity stated in the first sentence of the constitution and the right to "free development of one's personality" (Art. 2 Abs. 1 GG). Both would be compromised by unmitigated data collection through the authorities or other actors. For all intents and purposes, this human right now has the same status as the explicitly mentioned ones, like freedom of speech and religion, the inviolability of one's home etc.

Interestingly a majority to explicitly codify this right in the constitution could not yet be found; one could argue that the court shaped the law in a way which would not find the necessary majority in the elected legislature. On the other hand the court decision made the need for an explicit constitutional law less pressing and the effort to do so less adamant.

Answer 8

germany

In addition to the examples given by other answers, there is the interesting intersection of secular law and church law. The two major churches, Catholic and Lutheran, are major employers and they are allowed to apply some non-secular rules e.g. for employment matters. The origin of this is the gradual pushback against religious authority without a total break.

• Churches claim the right to offer 'asylum' on sacred grounds. This is no longer applied to criminal matters, but it is offered to some foreigners who are due to be deported. Secular authorities are simply hestiant to send cops into churches to deport people.
• Churches claim the right to demand an 'ethical lifestyle' from their employees, even if those employees are working in places like a hospital or a daycare center.
• Churches claim the right to investigate allegiations of sexual abuse by their priests, and to handle them e.g. by punitive reassignments. As with asylum, this is facilitated when the secular government fails to investigate properly.