Jurisprudence

Legal maxims are the proverbs of the law. They have the same merits and defects as other proverbs, being brief and pithy statements of partial truths. They express general principles without the necessary qualifications and exceptions, and they are therefore much too absolute to be taken as trustworthy guides to the law. Yet they are not without their uses. False and misleading when literally read, these established formulae provide useful means for the expression of leading doctrines of the law in a form which is at the same time brief and intelligible. They constitute a species of legal shorthand, useful to the lawyer, but dangerous to any one else; for they can be read only in the light of expert knowledge of that law of which they are the elliptical expression.

The language of legal maxims is almost invariably Latin, for they are commonly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. The following is a list of the more familiar and important of them, together with brief comments and references.

1. Actus non facit reum nisi mens sit rea.

Leges Henrici Primi, V. 28. (Thorpe’s Ancient Laws and Institutes of England, I. 511.) Coke’s Third Institute, f. 6.

The act alone does not make the doer of it guilty, unless it is done with a guilty mind. Material without formal wrongdoing is not a ground of liability. The presence either of wrongful intent or of culpable negligence is a necessary condition of responsibility. See §§ 127, 132, 145.

2. Adversus extraneos vitiosa possessio prodesse solet.

D. 41. 2. 53.

Prior possession is a good title of ownership against all who cannot show a better. In the civil law, however, from which this maxim is derived, it has a more special application, and relates to the conditions of possessory remedies. See § 161.

3. Apices juris non sunt jura.

10 Co. Rep. 126. Cf. D. 17. 1. 29. 4: Non congruit de apicibus juris disputare.

Legal principles must not be carried to their most extreme consequences, regardless of equity and good sense. A principle valid within certain limits becomes false when applied beyond these limits. The law must avoid the falsehood of extremes. See § 10.

4. Cessante ratione legis cessat lex ipsa.

In the application of this maxim we must distinguish between common and statute law.

(1) Common law. A legal principle must be read in the light of the reason for which it was established. It must not be carried further than this reason warrants, and if the ratio legis wholly fails, the law will fail also.

(2) Statute law. To statute law the maxim has only a limited application, for such law depends upon the authority of the litera legis. It is only when the letter of the law is imperfect, that recourse may be had to the reason of it as a guide to its due interpretation. The maxim in question, therefore, is valid only as a rule of restrictive interpretation. The complementary rule of extensive interpretation is, Ubi eadem ratio ibi idem jus. See Vangerow, I. sect. 25.

5. Cogitationis poenam nemo patitur.

D. 48. 19. 18.

The thoughts and intents of men are not punishable. The law takes notice only of the overt and external act. In exceptional cases, however, the opposite maxim is applicable: Voluntas reputatur pro facto—The law takes the will for the deed. See § 137.

6. Communis error facit jus.

Coke’s Fourth Inst. f. 240. Cf. D. 33. 10. 3. 5: Error jus facit.

A precedent, even though erroneous, will make valid law, if its authority has been so widely accepted and relied on that its reversal has become inexpedient in the interests of justice. See § 65.

7. Cuius est solum eius est usque ad coelum.

Co. Litt. 4 a. 9 Co. Rep. 54. See § 155.

8. De minimis non curat lex.

Cro. Eliz. 353. Cf. the medieval maxim of the Civilians: Minima non curat praetor. Dernburg, Pandekten, I. § 140. n. 5.

The law takes no account of trifles. This is a maxim which relates to the ideal, rather than to the actual law. The tendency to attribute undue importance to mere matters of form—the failure to distinguish adequately between the material and the immaterial—is a characteristic defect of legal systems. See § 10.

Cf. D. 2. 14. 7. 4: Nuda pactio obligationem non parit. C. 4. 65. 27: Ex nudo pacto ... actionem jure nostro nasci non potuisse.

In English law this maxim expresses the necessity of a legal consideration for the validity of a contract. Nudum pactum is pactum sine causa promittendi. In the civil law, however, the maxim means, on the contrary, that an agreement, to become binding, must fall within one of the recognised classes of legally valid contracts. There was no general principle that an agreement, as such, had the force of law. See § 124.

10. Ex turpi causa non oritur actio.

Cf. D. 47. 2. 12. 1: Nemo de improbitate sua consequitur actionem.

An agreement contrary to law or morals can give rise to no right of action in any party to it, either for the enforcement of it, or for the recovery of property parted with in pursuance of it. Cf. the maxim: In pari delicto potior est conditio defendentis. See § 124.

11. Ignorantia facti excusat, ignorantia juris non excusat.

Cf. D. 22. 6. 9. pr. Regula est juris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere. See §§ 146. 147.

12. Impossibilium nulla obligatio est.

D. 50. 17. 185.

Otherwise: Lex non cogit ad impossibilia. Impossibility is an excuse for the non-performance of an obligation—a rule of limited application.

13. In jure non remota causa sed proxima spectatur.

Bacon’s Maxims of the Law, 1.

A man is not liable for all the consequences of his acts, but only for those which are natural and probable—that is to say, those which he foresaw or ought to have foreseen.

14. In pari causa potior est conditio possidentis.

Cf. D. 50. 17. 128. pr.: In pari causa possessor potior haberi debet. Also D. 20. 1. 10. D. 6. 2. 9. 4.

Possession and ownership—fact and right—enjoyment and title—are presumed by the law to be coincident. Every man may therefore keep what he has got, until and unless some one else can prove that he himself has a better title to it. See § 107.

15. In pari delicto potior est conditio defendentis.

Cf. D. 50. 17. 154: Cum par delictum est duorum, semper oneratur petitor.

Identical in effect with the maxim: Ex turpi causa non oritur actio.

Cicero, Pro Milone, IV. 10.

This maxim has a double application: (1) As between the state and its external enemies, the laws are absolutely silent. No alien enemy has any claim to the protection of the laws or of the courts of justice. He is destitute of any legal standing before the law, and the government may do as it pleases with him and his. (2) Even as regards the rights of subjects and citizens, the law may be put to silence by necessity in times of civil disturbance. Necessitas non habet legem. Extrajudicial force may lawfully supersede the ordinary process and course of law, whenever it is needed for the protection of the state and the public order against illegal violence. See § 36.

17. Invito beneficium non datur.

D. 50. 17. 69.

The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons, or disclaims a right will lose it. See § 122.

18. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.

D. 1. 1. 10. 1. Just. Inst. 1. 1. 3.

“These are the precepts of the law: to live honestly, to hurt no one, and to give to every man his own.” Attempts have been sometimes made to exhibit these three praecepta juris as based on a logical division of the sphere of legal obligation into three parts. This, however, is not the case. They are simply different modes of expressing the same thing, and each of them is wide enough to cover the whole field of legal duty. The third of them, indeed, is simply a variant of the received definition of justice itself: Justitia est constans et perpetua voluntas jus suum cuique tribuendi. D. 1. 1. 10 pr. Just. Inst. 1. 1. 1.

19. Jus publicum privatorum pactis mutari non potest.

D. 2. 14. 38. Cf. D. 50. 17. 45. 1.

By jus publicum is meant that portion of the law in which the public interests are concerned, and which, therefore, is of absolute authority and not liable to be superseded by conventional law made by the agreement of private persons. Cf. the maxim: Modus et conventio vincunt legem. See § 124.

20. Modus et conventio vincunt legem.

2 Co. Rep. 73.

The common law may in great measure be excluded by conventional law. Agreement is a source of law between the parties to it. See §§ 11. 122.

Cf. Bacon’s Maxims of the Law, 5: Necessitas inducit privilegium. A recognition of the jus necessitatis. See § 139.

22. Neminem oportet legibus esse sapientiorem.

Bacon, De Augmentis, Lib. 8. Aph. 58. Cf. Aristotle, Rhetoric, I. 15. 12.

It is not permitted to be wiser than the laws. In the words of Hobbes (Leviathan, ch. 29), “the law is the public conscience,” and every citizen owes to it an undivided allegiance, not to be limited by any private views of justice or expediency. See § 9.

23. Nemo plus juris ad alium transferre potest, quam ipse haberet.

D. 50. 17. 54.

The title of an assignee can be no better than that of his assignor. Cf. the maxim: Nemo dat qui non habet. See § 163.

24. Nemo tenetur se ipsum accusare.

The law compels no man to be his own accuser or to give any testimony against himself—a principle now limited to the criminal law. See § 175.

25. Nemo dat qui non habet.

No man can give a better title than that which he himself has. See § 163.

26. Non omne quod licet honestum est.

D. 50. 15. 144. pr.

All things that are lawful are not honourable. The law is constrained by the necessary imperfections of its methods to confer many rights and allow many liberties which a just and honourable man will not claim or exercise.

27. Nullus videtur dolo facere, qui suo jure utitur.

D. 50. 17. 55.

A malicious or improper motive cannot make wrongful in law an act which would be rightful apart from such motive. The rule, however, is subject to important limitations. See § 136.

28. Qui facit per alium, facit per se.

Co. Litt. 258a.

He who does a thing by the instrumentality of another is considered as if he had acted in his own person.

Cf. C. 8. 17. 3: Sicut prior est tempore, ita potior jure.

Where two rights or titles conflict, the earlier prevails, unless there is some special reason for preferring the later. See § 85.

30. Quod fieri non debet, factum valet.

5 Co. Rep. 38.

A thing which ought not to have been done may nevertheless be perfectly valid when it is done. The penalty of nullity is not invariably imposed upon illegal acts. For example, a marriage may be irregularly celebrated, and yet valid; and a precedent may be contrary to established law, and yet authoritative for the future. See § 66.

31. Res judicata pro veritate accipitur.

D. 1. 5. 25.

A judicial decision is conclusive evidence inter partes of the matter decided. See § 67.

32. Respondeat superior.

Coke’s Fourth Inst. 114.

Every master must answer for the defaults of his servant as for his own. See § 149.

33. Sic utere tuo ut alienum non laedas.

9 Co. Rep. 59.

Every man must so use his own property as not to harm that of another. This is the necessary qualification of the maxim that every man may do as he will with his own. See § 154.

34. Summum jus summa injuria.

Cicero, De Off. I. 10. 33.

The rigour of the law, untempered by equity, is not justice but the denial of it. See §§ 10. 13.

35. Superficies solo cedit.

Gaius 2. 73.

Whatever is attached to the land forms part of it. Cf. Just. Inst. 2. 1. 29: Omne quod inaedificatur solo cedit. See § 155.

36. Ubi eadem ratio, ibi idem jus.

This is the complement of the maxim, Cessante ratione legis, cessat lex ipsa. A rule of the common law should be extended to all cases to which the same ratio applies, and in the case of imperfect statute law extensive interpretation based on the ratio legis is permissible. See Vangerow, I. sect. 25.

37. Ubi jus ibi remedium.

Cf. the maxim of the Civilians: Ubi jus non deest nee actio deese debet. Puchta II. sect. 208. n.b.

Whenever there is a right, there should also be an action for its enforcement. That is to say, the substantive law should determine the scope of the law of procedure, and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognise. In early systems this is far from being the case. We there find remedies and forms of action determining rights, rather than rights determining remedies. The maxim of primitive law is rather, Ubi remedium ibi jus.

38. Vigilantibus non dormientibus jura subveniunt.

Cf. D. 42. 8. 24: Jus civile vigilantibus scriptum est.

The law is provided for those who wake, not for those who slumber and sleep. He who neglects his rights will lose them. It is on this principle that the law of prescription is founded. See § 162.

39. Volenti non fit injuria.

Cf. D. 47. 10. 1. 5: Nulla injuria est, quae in volentem fiat.

No man who consents to a thing will be suffered thereafter to complain of it as an injury. He cannot waive his right and then complain of its infringement.