Maxims of Law

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Maxims of Law or Legal Maxims

According to the Bouvier’s Dictionary, a Maxim is an established principle or proposition. A principle of law universally admitted, as being just and consonant with reason.

Maxims in law are somewhat like axioms in geometry. See 1 Commentaries on the Laws of England (by Sir Wllliam Blackstone). 68. They are principles and authorities, and part of the general customs or Common law of the land; and are of the same strength as acts of parliament, when the judges have determined what is a maxim; which belongs to the judges and not the jury. Terms do Ley; Doct. & Stud. Dial. 1, c. 8. Maxims of the law are holden for law, and all other cases that may be applied to them shall be taken for granted. 1 Inst. 11. 67; 4 Rep. See 1 Com. c. 68; Plowd. 27, b.

The application of the maxim to the case before the court is, generally, the only difficulty. The true method of making the application is to ascertain how the maxim arose, and to consider whether the case to which it is applied is of the same character, or whether it is an exception to an apparently general rule.

The alterations of any of the maxims of the Common law are dangerous, according to John Bouvier .

General Principle

The expression “maxim” is defined as a general principle saying as a rule or guide, a pithy saying or a proverb. Maxim, though veiled in a dignity of the learned language, is a statement of a principle of great importance; but most maxims are much too vague and much too general to admit of application without careful consideration of the circumstances and of the various definite rules which have been laid down by the authorities. They have very slender foundation, and cannot occupy the status of law. For example, in regard to the maxim “falsus in uno falsus in omnibus” , the Indian Supreme Court observed that it has not received general acceptance in different jurisdiction in India, nor has it come to occupy the status of law.

It is merely a rule of caution. In Sohrab v. State of Madhya Pradesh, the Supreme Court held that the above doctrine is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not
necessarily true, or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.

They are Empiric

A maxim or a proverb or an expression cannot be placed on a high pedestal as a legislative judgment and insofar as judicial deference is concerned, the court does not forget that every maxim or proverb or expression is empiric and is based on experimentation or what one may call “trial and error” , and, therefore, its validity cannot be tested on any rigid ‘a priori’ consideration or on the application of any straitjacket formula as embodied in it. As pointed out by Cardozo J. in Stewart Dry Good Co. v. Lewis, quoted with approval by the Supreme Court in
Kodar v. State of Kerala, “the law builds on the probables only” and cannot possibly comprehend all conceivable situations at any rate in one measure, in any event at one time.

Maxim or proverb is, therefore, a norm and a guiding principle, lacking however legal effect and consequence. It is a general principle of law developed in the past based on experience and acts as a guide for the judges. But the law does not operate in vacuum. It is not an antique to be taken down, dusted, admired and put back on the shelf but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economical and political setting in which it is intended to operate.

The law is, therefore, in the flux of evolution and there can be no rigidity as regards its norms and principles which may be relevant in the context of the past, but may not be so now. Old values, old ideologies and old systems are replaced by different ideologies, different values and different systems. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in the particular circumstances turns out to be wholly unsuited and inadequate in different times and under different circumstances.

Maxims are components of presumptions known to law. The history of rules of presumption is succinctly given in W. S. Wordsworth’s History of English Law, Volume IX, thus:

“From time to time the ordinary process of reasoning have suggested various inferences, which have been treated by the courts in different ways. Sometimes they are treated as more or less probable inferences of fact; and it is possible, though by no means certain, that in the remote past most presumptions originated as mere presumptions of facts. Just as in the case of judicial notice, the courts, as a matter of common sense, assumed the existence of matters of common knowledge without further proof, so they easily drew an obvious inference from facts proved or
admitted, and thus created a presumption, as common sense dictated.

And just as the truism which elementary experience teaches came to be embodied in maxims which illustrate the origins of the doctrine of judicial notice, so other maxims arose which illustrate the origins, in the same elementary experience, of some of the components of presumption known to the law. But it was inevitable that as the law developed, some of these presumptions should be so frequently drawn that they took upon themselves the character of the rules of law; and we shall see that, owing to the exigencies of primitive methods of trial, the Legislature and the courts were active in creating them. Some of them were made or became only prima facie rules -rules, that is, which were rebuttable by further evidence. Others were made or became irrebuttable, and therefore, in effect, rules of law. Others, hovered uncertainly on the borderline of rebuttable or irrebuttable presumptions.”

They are not Unalterable if the Context Requires

The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and the needs and aspirations of the people. As the society changes, the law cannot remain immutable, and early nineteenth century essayist and wit Sydney Smit said, “when I hear any man talk of an unalterable law I am convinced that he is an unalterable fool” .

Embodiments of maxims or proverbs are not unalterable proposition having universality of application notwithstanding the context and changed circumstances. Nonetheless they contain statement of principles of great importance for the guidance of court.

Herbert Broom states in preface to his celebrated work on Legal Maxims: “In the Legal Science, perhaps more frequently than in other, reference must be made to the first principles” . The fundamentals or the first principles of law often articulated as the maxims are manifestly founded in reason, public convenience and necessity. Modern trend of introducing subtleties and distinctions, both in legal reasoning and in the application of legal principles, formerly unknown, have rendered an accurate acquaintance with first principles more necessary rather than diminishing the values of simple fundamental rules. The fundamental rules are the basis of the law; may be either directly applied, or qualified or limited, according to exigencies of the particular case and the novelty of the circumstances which present themselves. [Jamal Uddin Ahmad v. Abu Saleh Najmuddin [2003] 4 ILD 242 (SC)].

In Dhannalal v. Kalawatibai [2002] 6 SCC 16, the Indian Supreme Court has held: “… when the statute does not provide the path and the precedents abstain to lead, then sound logic, rational reasoning, common sense and urge for public good play as guides of those who decide.”

Maxims Explained

Some of the maxims, proverbs, expressions have been explained (see the legal maxims platform) as to their meaning, contents and relevance, with the aid of the case laws. They help the court in a long way in interpreting statute; some of them have universal application and their relevance has not been lost with the passage of time.

See Also

  • Maxims of Law from Bouvier’s Dictionary of Law
  • Maxims in Law and Equity, William Henning
  • A Collection of Legal Maxims in Law and Equity; by Peloubet, Seymour
  • Glossary of Technical Terms, Phrases, and Maxims of the Common Law; by Frederic Jesup Stimson
  • A Selection of Legal Maxims , by Herbert Broom, (third edition, 1852)

Conclusion

Notes

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

A Selection of Legal Maxims, Bouvier’s Law Dictionary and Institutes of American Law, Common law, John Bouvier, List of Legal Dictionaries.

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