Using maxims in legal arguments
As you know, a legal maxim is an established principle or proposition of law, often established through the passage of time; not attributed to a specific individual, unlike a quote. Maxims have historically been viewed as a summary of legal principles, conclusions of reason, principles established through custom, and also principles used in a logical reasoning process, when thinking about a case. Thinking about this in rhetorical terms, maxims formed part of the first canon of rhetoric; namely thinking about what your arguments are in a specific case. Advocacy students, in the time of the Ancient Greeks, studied the Progymnasmata, a series of exercises to develop your rhetorical ability, and the study of maxims formed part of that. Being long established principles, often going back to Roman law they carry considerable weight, and they also provide a way of thinking about a particular issue. In legal practice, maxims have usually been backed up by references to cases.
The attitude of early English commentators towards the maxims of the law was one of adulation, viewing them as comparable to statutes. Christopher St Germain, in Doctor and Student 1518 describes them as follows:
And such maxims be not only held for law, but also other cases like unto them, and all things that necessarily follow upon the same are to be reduced to the like law; and therefore most commonly there be assigned some reasons or considerations why such maxims be reasonable, to the intent that other cases like may the more conveniently be applied to them. And they be of the same strength and effect in the law as statutes be.
Historically, maxims and the common law often worked together.
We can see a good example of this in relation to the law of murder. The most well known definition of murder is that found in Coke’s, Institutes of the Laws of England, written in 1518.
Edward Coke Definition of murder Institutes of the law of England 1518
However, Coke then goes on to explain that principles, such as being of sound mind, rely on the legal maxim “Et actis non facit reum, nihi mens fit rea ”(the act is not wrongful unless the mind is wrongful) and these principles still hold true today.
Today maxims are still used, and some remain very well known, such as:
“Delay defeats equity”
“He who comes to equity must come with clean hands”
“Caveat emptor”
There are six main collections of maxims and these are listed below along with links to the actual collections. All texts are courtesy of archive.org and are made available free of charge.
Francis Bacon, Collection of Some Principal Rules and Maxims of the Common Law (1630);
Noy, Treatise of the principal Grounds and Maxims of the Law of England (1641, 8th ed., 1824);
Wingate, Maxims of Reason (1728);
Francis, Grounds and Rudiments of Law and Equity (2nd ed. 1751);
Lofft (annexed to his Reports, 1776);
Broom, Legal Maxims (7th ed. London, 1900).
The most modern source of these maxims is Broom’s Legal Maxims. However, one of the reasons that maxims have fallen out of favour to a certain extent is most of them were written in Latin, with the English translation only included under the chapter dealing with that maxim. This meant that unless you know Latin, maxims could be quite difficult to look up. To make things easier, I have identified the names of the maxim in English and listed the page that deals with that maxim in Brooms Legal Maxims, which is the most modern text on maxims available.
Legal maxims relating to public policy
Maxim in English |
Dealt with in Brooms on page |
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That regard be had to the public welfare, is the highest law. |
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With respect to private rights, necessity privileges a person acting under its influence (Covers necessity of self preservation, necessity of obedience, necessity of an act of God or a stranger. |
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That rule of conduct is to be deemed binding which religion dictates. |
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Sunday is not a day for judicial or legal proceedings. |
Legal maxims relating to legislative policy
Maxim in English |
Dealt with in Brooms on page |
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When the provisions of a later statute are opposed to those of an earlier, the earlier statute is considered as repealed. |
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A legislative enactment ought to be prospective, not retrospective, in its operation. |
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The laws are adapted to those cases which most frequently occur. |
Legal maxims relating to the Crown
Maxim in English |
Dealt with in Brooms on page |
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The king is under no man, yet he is in subjection to God and to the law, for the law makes the king. |
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The king never dies. |
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The king can do no wrong. |
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The king cannot confer a favour on one subject which occasions injury and loss to others. |
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Lapse of time does not bar the right of the Crown. |
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Where the title of the king and the title of a subject concur, the king's title shall he preferred. |
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The king is not hound by any statute, if he be not expressly named to be so bound. |
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A man cannot abjure his native country nor the allegiance which he owes to his sovereign. |
Maxims relating to judicial office
Maxim in English |
Dealt with in Brooms on page |
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It is the duty of a judge, when requisite, to amplify the limits of his jurisdiction. |
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The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error either of law or of fact. |
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Where a person does an act by command of one exercising judicial authority, the law will not suppose that he acted from any wrongful or improper motive, because it was his bounden duty to obey. |
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It is the office of the judge to instruct the jury in points of law—of the jury to decide on matters of fact. |
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In presence of the major the power of the minor ceases. |
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The mode of administrating justice
Maxim in English |
Dealt with in Brooms on page |
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No man should be condemned unheard. |
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No man can be judge in his own cause. |
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An act of the Court shall prejudice no man. |
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An act in law shall prejudice no man. |
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A legal fiction is always consistent with equity. |
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The law will not in its executive capacity work a wrong. |
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The practice of the Court is the law of the Court. |
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The acquiescence of a party who might take advantage of an error obviates its effect. |
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Common error sometimes passes current as law. |
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The law does not concern itself with trifles. |
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Every innovation occasions more harm and derangement of order by its novelty, than benefit by its abstract utility. |
Rules of logic
Maxim in English |
Dealt with in Brooms on page |
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Like reason doth make like law. |
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Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. |
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Where the Court cannot take judicial notice of a fact, it is the same as if the fact had not existed. |
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A matter, the validity of which is at issue in legal proceedings, cannot be set up as a bar thereto. |
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He is not to be heard who alleges things contradictory to each other. |
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The greater contains the less. |
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That which was originally void, does not by lapse of time become valid. |
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An argument drawn from inconvenience is forcible in law. |
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The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty. |
Fundamental Legal Principles
Maxim in English |
Dealt with in Broom’s on page |
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There is no wrong without a remedy. |
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That which is without remedy avails of itself, if there be no fault in the party seeking to enforce it. |
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In law, the immediate, not the remote, cause of any event is regarded. |
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The act of God is so treated by the law as to affect no one injuriously. |
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The law does not seek to compel a man to do that which he cannot possibly perform. |
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Ignorance of fact excuses—ignorance of the law does not excuse. |
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That to which a person assents is not esteemed in law an injury.(Volenti non fit injuria) |
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No man should take advantage of his own wrong. |
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Acts indicate the intention. |
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The act itself does not make a man guilty unless his intention were so/the act is not wrongful unless the intention is wrongful |
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It is a rule of law that a man shall not he twice vexed for one and the same cause. |
The next series of maxims relate to specific areas of law. If you click on the area you are interested in the link will take you to those subject specific maxims.
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Property law maxims
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Maxims relating to marriage and descent
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Maxims relating to the interpretation of deeds and written instruments
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Contract law maxims
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Maxims applicable to the law of evidence
Property Law Maxims
The mode of acquiring property
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He has the better title who was first in point of time. |
Property – it’s rights and liabilities
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Maxim in English |
Dealt with in Broom’s on page |
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Enjoy your own property in such a manner as not to injure that of another person. |
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He who possesses land possesses also that which is above it. |
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Whatever is affixed to the soil belongs thereto. |
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Every man's house is his castle. |
The transfer of property
Maxim in English |
Dealt with in Broom’s on page |
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Alienation is favoured by the law rather than accumulation. |
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The bestower of a gift has a right to regulate its disposal. |
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An assignee is clothed with the rights of his principal. |
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Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect. |
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The incident shall pass by the grant of the principal, but not the principal by the grant of the incident. |
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Although the grant of a future interest is invalid, yet a declaration precedent may be made which will take effect on the intervention of some new act. |
Maxims relating to marriage and descent
Maxim in English |
Dealt with in Broom’s on page |
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It is the consent of the parties, not their concubinage, which constitutes a valid marriage. |
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The common law takes him only to be a son whom the marriage proves to he so. |
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No one can be heir during the life of his ancestor. |
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It is not the right but the seisin, which makes a person the stock from which the inheritance must descend. |
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The right of inheritance never lineally ascends. |
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The brother's possession of an estate in fee simple makes the sister to be heir. |
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The interest of a personal connection is sometimes regarded in law as that of the individual himself. |
Maxims relating to the interpretation of deeds and legal instruments
Maxim in English |
Dealt with in Broom’s on page |
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A liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. |
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A passage will be best interpreted hy reference to that which precedes and follows it. |
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The meaning of a word may be ascertained by reference to the meaning of words associated with it. |
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The words of an instrument shall be taken most strongly against the party employing them. |
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Latent ambiguity may he supplied by evidence; for an ambiguity which arises by proof of an extrinsic fact, may, in the same manner, be removed. |
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In the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument. |
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That is sufficiently certain which can be made certain. |
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Surplusage does not vitiate that which in other respects is good and valid. |
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Mere false description does not make an instrument inoperative. |
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General words may be aptly restrained according to the subject-matter or persons to which they relate. |
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The express mention of one thing implies the exclusion of another.(Expressio unius est exclusio alterius). |
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The expression of what is tacitly implied is inoperative. |
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Words to which reference is made in an instrument have the same effect and operation as if they were inserted in the clause referring to them. |
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Relative words refer to the next antecedent, unless by such a construction the meaning of the sentence would be impaired. |
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The best and surest mode of expounding an instrument is by referring to the time when, and circumstances under which, it was made. |
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He who considers merely the letter of an instrument goes but skin-deep into its meaning. |
Maxims relating to contract law
Maxim in English |
Dealt with in Broom’s on page |
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The form of agreement and the convention of parties overrule the law. |
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Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour. |
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He who derives the advantage ought to sustain the burden. |
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Where the right is equal the claim of the party in actual possession shall prevail. |
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A right of action cannot arise out of fraud. |
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No cause of action arises from a bare promise. |
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Let the buyer beware |
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Money paid is to be applied according to the intention of the party paying it; and money received, according to that of the recipient. |
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He who does an act through the medium of another party is in law considered as doing it himself. |
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Let the principal be held responsible. |
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A subsequent ratification has a retrospective effect, and is equivalent to a prior command. |
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Nothing is so consonant to natural equity as that every contract should he dissolved by the same means which rendered it binding. |
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The laws assist those who are vigilant, not those who sleep over their rights. |
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A personal right of action dies with the person. |
Maxims relating to evidence
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Maxim in English |
Dealt with in Broom’s on page |
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Usage is the best interpreter of things. |
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Credence should he given to one skilled in his peculiar profession. |
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Every presumption is made against a wrong-doer. |
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All acts are presumed to have been rightly and regularly done. |
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A transaction between two parties ought not to operate to the disadvantage of a third. |
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No man can he compelled to criminate himself. |