Maxim 11.1.9
If the written law be silent, that which is drawn from manners and custom ought to be observed; and if in that anything is defective, then that which is next and analogous to it.
Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est; et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est.
Source: 7 Co. 19; Jackson
Difficulty 2/5 — Approachable
Explanation
Where the written law fails to address a matter, custom fills the gap; where custom also fails, the nearest analogous principle governs.
Where this applies
- The written law doesn't address this situation so we should look to custom and practice.
- Where the statute is silent, established custom fills the gap.
- If neither statute nor custom covers it, the nearest analogous principle applies.
Legal domains
See also
Cite this maxim
NeCede Max. 11.1.9 — If the written law be silent, that which is drawn from manners and custom ought to be observed; and if in that anything is defective, then that which is next and analogous to it. — 7 Co. 19; Jackson (Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est; et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est.)
Found an error? Suggest a correction →