The Modern Role of the Maxims of Jurisprudence

By Joshua S. Hopstone

When did you last give a thought to the Maxims of Jurisprudence? Civ. Code, §§3509 – 3548. Codified in 1872, those quaint proverbial sayings exemplify some of our most fundamental legal canons. “The greater contains the less.” §3536. “Time does not confirm a void act.” §3539. “No one should suffer by the act of another.” §3520. You can read them all in two minutes, and I suggest you do; they may bring you a smile.

What is puzzling, though, is why the Legislature found it necessary to formally codify them. Sir James Mackintosh said “Maxims are the condensed Good Sense of Nations.” (This phrase became the motto of Herbert Broom’s Legal Maxims (1839)). Condensed, certainly. And by their own terms, they are “intended not to qualify any of the foregoing provisions of this [Civil Code], but to aid in their just application.” §3509. But if they are so universal, why did they need to be permanently branded in the Civil Code? Do the Maxims today satisfy their stated purpose of aiding us in the just application of the law? What is their role in modern jurisprudence?

Maxims “are phrases, solemn and imposing in form, which seldom or never render any real assistance in the solution of a legal puzzle; but on the contrary actually retard that solution. They are mere truisms; or mere identical propositions; or moral precepts; or principles of legislation; but not working rules of law.” Jeremiah Smith, The Use of Maxims in Jurisprudence, 9 Harv. L. Rev. 13, 14 (1895). In other words, while the Maxims
undoubtedly provide us a unique glimpse into the historical foundation of our common sense of equity, justice, and individual freedom – the very fabric of our society – conceptually, they are not “law” because they are not enforceable.

Consider section 3514: “One must so use his own rights as not to infringe upon the rights of another.” Sounds great, right? (Besides the fact that if such was the reality many of us litigators would be out of a job…).  It seems, though, more a statement of universal morality than a concrete law – something that should “go without saying” instead of requiring a code section to be applicable.

Smith wrote that this maxim, “‘Sic utere tuo ut alienum non laedas,’ is mere verbiage. A party may damage the property of another where the law permits; and he may not where the law prohibits; so that the maxim can never be applied till the law is ascertained; and, when it is, the maxim is superfluous.” “This affords no aid…in determining whether the act complained of is actionable, that is, unlawful. It amounts to no more than a truism: An unlawful act is unlawful.” Smith, supra, 9 Harv. L. Rev. at 14-16.

Continue reading – March 2012 CITATIONS

Joshua S. Hopstone is an associate at Ferguson Case Orr Paterson LLP in Ventura whose practice spans family law, business litigation, and appeals.

About Bar