Maxims of Law Introduction
Maxims of law are general legal rules that have been derived from the history of the law, and are so fundamental in determining not only what is law, but also what should be law. Maxims of law are rule of law that stand the test of time, they are the principles that have been accepted and authoritative to such an extent that they functioned as legal in themselves. So, where no law directly applies to the matter at hand, the maxim that has evolved from experience is applied.
Although maxims of law are a small part of the overall corpus of legal authorities, they are an integral part of legal studies. Even in our everyday life, when a challenge comes knocking at the door, it is through the application of a sound legal maxim of law that the door can be opened.
Ancient writers of law and many modern writers have sought to collect and print maxims of law.
Early years of the British law witnessed legal writers such as Bracton and Fleta , who were known for their attempts to (re)think and codify the known legal maxims of their time. The first ever Latin title that contained a collection of maxims of law was in 1537, when the work Causa et Ordo Judiciorum appeared. In what would later emerge as the popular petition of right, the author pleaded for the harmonization of maxims of law with the Statute of Westminster.
The influence of the maxims of law can be seen and still used in modern day advisory circles. It is said that every lawyer who is supposed to know what law really is and ought to be is obligated to be acquainted with maxims of law.
Unlike almost every category of rules in the law, maxims of law have survived the onslaught of alternative sources of authority. Despite several attempts to discard or expressly invalidate the concept of maxims of law, especially through the enactment of legislative measures, maxims of law have seen the days of transformation and have out survived the conventional test of time.
Purpose of Maxims in Legal Interpretation
Black’s Law Dictionary defines a maxim as: "A general principle or rule of law." And the dictionary notes that it is derived – through Latin – from the French word maxime, "and can be understood as being a ‘rule’ or a ‘principle’ or even a ‘motto.’" For our purposes, let us think of maxims of law as "rules" that can be used by courts and lawyers when interpreting the law or seeking to understand the meaning of a legal principle.
One example of how maxims of law help to interpret statutes – the formal written laws of a state or country – is when the term "felony" appears. While we often think of felonies as crimes that include jail time (hanging, shooting, stabbing, burning at stake, etc.), a court needs to determine what the term means within the context of the essential legal principle of that particular statute. Under the "Maxims of Equity," every term in a statute or legal principle "must be interpreted according to its general acceptation." So the court would ask what was the general understanding of the term "felony" when that statute was issued; in this case, in 1789. In these days, a felony generally included any banned acts that caused the individual to lose their civil rights, including the right to vote or own land. It did not require the act to be a crime. Thus, "felon," in the context of statutory interpretation of the term, meant an individual who could not vote or own land, and may not have been a criminal at all.
Another way that maxims of law are used in legal interpretation is by the courts themselves in defining legal principles. For example, a judge may be faced with a situation where a party is claiming the existences of a trust. Without a statutory definition of a trust, however, and without an established legal principle defining a trust, the court may find that the legal term does not exist. In order to establish a new trust, based on a non-statutory basis, the court would likely look at the context of the claim and decide if it was in the best interest of justice (oftentimes referenced as "The law favors a trust because it is a disposition of property which is not in fraud of the Rights of Creditors."). In this case, the judge may favor the establishment of a trust and, through his or her opinion, create legal precedent for the next court to follow.
Maxims are the background for any good legal education. "To know something well is to know it through and through," Cicero said and legal training develops the ability to understand the underlying principles or "shallow" knowledge, that can lead to bad judgments if applied inappropriately. In order to reach good judgment and thoughtful application of the law, it is important to understand the basis of those principles; maxims are one of those tools.
Common Maxims and Their Definition
Scholarly legal literature is replete with the use of Latin maxims. The following list includes several generally well known maxims, with their Latin formulation, translation, and meaning provided for your reference.
De minimis non curat lex.
English Translation: The law does not concern itself with trifles.
Meaning: Minor issues will not be judicially decided.
Application: Courts will not adjudicate disputes involving insignificant amounts or minuscule issues.
Ignorantia juris non excusat.
English Translation: Ignorance of law is no excuse.
Meaning: Unawareness of law is not an excuse to break the law.
Application: A party cannot avoid liability for a violation of law on the basis that the party was unaware of the legal requirement at issue.
Leges postestates, sed post facite.
English Translation: Laws should be interpreted in accordance with their intent, not their letter.
Meaning: Courts should adhere to the spirit of the law when interpreting statutory provisions.
Application: Courts will interpret statutes based upon what they were designed to accomplish, instead of what they literally state.
Nemo debet esse commodi ex aliene damno.
English Translation: No one should be able to benefit from the damages suffered by another.
Meaning: No party should benefit from the detriment suffered by another.
Application: Parties cannot exploit the damages suffered by another party, to their own benefit.
Maxims in Other Systems of Law
The application and importance of maxims also vary across different jurisdictions. In civil law jurisdictions, relevant maxims are incorporated within the binding civil code, which focuses on the impact and application of concepts of public law. Therefore, not only do civil law jurisdictions tend to have maxims that are more specific and topical in nature than those of their common law counterparts, but also it is not uncommon for some laws in civil code jurisdictions to side step certain important legal maxims that are often referred to in common law.
Contemporary civil law jurisdictions have adopted a more flexible approach to legal maxims, by including them within their civil code, but retaining the language used in the relevant principles. The main advantage of this technique is that those who practice law in different civil law jurisdictions can be guided by maxims of law which would be familiar to those who operate within other civil law jurisdictions , outside of their own. However, care must be taken when following such maxims outside of the jurisdiction from which they originate. Unfortunately, as has been noted previously, the contents of civil law jurisdictions can differ quite considerably. Furthermore, there can also be notable deviations even within a civil law jurisdiction.
While maxims of law have not historically been featured within legal texts in common law jurisdictions, such texts are beginning to include them. In particular, standard legal textbooks often contain maxims of law in order to reflect their practical importance to lawyers. Legal maxims with Latin origins are often translated into English so that their meaning can be understood. However, similar to civil law jurisdictions, provisions of the law in common law jurisdictions can be very specific or topical; whereas maxims of law are generally more abstract.
Where You Can Find Maxims of Law PDF Guides
You can find a number of PDF format resources that contain maxims of law either in their entirety or as relevant excerpts. Numerous legal websites provide sources for relevant PDF documents such as "The Family Maxims of Law" from PublicResource.org and "Selected American maxims of equity" from DigitalCommons@ONU.
In addition, those interested in researching California laws may be interested in the list of Maxims of Law from the California Department of Justice website which closely follows the texts of Bouvier’s Law Dictionary. A particularly useful source of maxims of law from around the world is the Maxims of Law Library from LegalMaxims.net. Another convenient source of maxims of law from around the world can be found on the Lillian Goldman Law Library’s Legal Maxims from around the World website. Unfortunately, many of these sources are not maintained for a longer term. When researching these sources, it is wise to note that the original publication dates, either on the websites, or the PDFs themselves, may be many years if not decades old.
Final Word: Maxims in Modern Law
While much of the positive law, or law that can be applied directly to specific cases, exists in statutes, maxims — rules of thumb — are still used by lawyers and judges today in both common law and civil systems. Even though often not codified, many legal maxims are reminders of fundamental principles and doctrines that are useful for resolving disputes. Maxims can help interpret statutes or legal principles that are vague or ambiguous in the law to guide a legal decision. All laws and situations cannot be codified, but maxims can be easily understood and applied to fill in the gaps.
Legal maxims and principles are used by judges around the world. In some civil law and mixed legal systems, legal maxims form part of the codified law. In these legal systems, maxims are found in such forms in legal codes and statutes as jurisdictional references, definitions, penal provisions, prohibitions and permissions, stipulating the punishment for those who violate the maxims, and by rewarding those who follow them. Maxims also usually influence the direction of statutory development.
In common law countries, maxims are also used where the law is not clear. Common law jurisdictions apply maxims of law when interpreting statutes. Statutes in common law countries have historically used ambiguous language, and maxims can help guide the outcome of legal controversies arising from interpreting the law.
Courts may emphasize particular legal maxims in developing jurisprudence in various areas of law because of their utility in clarifying the interpretation of the law and determining legal outcomes. As sources of law , maxims can advance jurisprudence because the maxims can represent the commonly held views of a society in writing the statutes or laws, and how to apply the laws in a variety of situations. Since the maxims represent these socially held ideas, in some circumstances the jurisprudence will be largely uniform in the interpretation of the law and the application of the laws. Some legal scholars have argued that, in some legal systems, the maxims have inherent normative values, and if applied universally, they are legally binding. Their further argument is that applying maxims assists in obtaining legal certainty. State courts in some legal systems, however, do not find maxims legally binding interpretations of law, even though maxims may be persuasive sources of law. In common law systems, the use of maxims to interpret statutes or common law may also be limited because the various jurisdictions in a country may have different maxims or interpretations of the same maxims, and the application of the maxims would be limited to that local jurisdiction in those states.
Maxims of law continue to be a valuable resource of jurisdiction. Maxims represent a combination of well-founded legal wisdom distilled from a variety of sources. Some argue that the ideal of maxims are more just and equitable than written law, and that laws perish and are imperfect, while maxims are unchanging and can provide a consistent basis for interpreting law.