PEARLS OF WISDOM – A STUDY OF LEGAL MAXIMS

PEARLS OF WISDOM – A STUDY OF LEGAL MAXIMS M. K. CHATURVEDI Vice President Maxim can be defined as an established principle or proposition. A tenet of law universally admitted as being just and consonant with reasons. Lord Coke said: — “Maxims are a sure foundation or ground of art and a conclusion of reason, so sure and uncontrolled that they ought not to be questioned”. Maxims in law are said to be somewhat like axioms in geometry. They are the principles and authorities, and part of the general customs or common law of the land. These are sort of legal capsules, useful in dispensing justice. Maxims have been divided, as to their origin, into three classes: — Roman, Roman modified, and indigenous. They are mostly derived from civil law, either literally or by adaptation, and most of those which are not found in the Roman sources are the invention of medieval jurists. The earliest work on maxims appears to have been that of Bacon (1630) followed by Noy (1641), Wingate (1658), Heath (Pleading, 1694), Francis (1723), Grounds and Rudiments of Law and Equity (Anonymous, 1751, of which Francis was the author), Branch (1753), Logtt (1776, in his Reports). Broom (1845), Trayner (1872, 1883), Cotteral (1881, 1894), and Wharton’s Dictionary (1848, 1892), Lawson (1883), Bells Dictionary (Scotch, 1890), Petoubet (New York, 1880), Barton, Stimson, Morgan, Taylor, Hening, Halkerston, Jackson (Law Latin), and Hughes. The tenets of law canonized in maxim are the precepts, ideals and techniques of law referring a general truth drawn from experience. In the olden days great majority of questions apropos the rights, remedies and liabilities to private individuals were determined with reference to maxims. The lasting importance of maxims is well expressed by Lord Cameron in an article on “Maxims,” in Green’s Encyclopaedia of the Law of Scotland (Vol. 9, para 1201) where he says:— “In legal discussions reference is constantly being made to certain principles of common sense and justice, which are necessarily the same in the legal systems of all nations. Many of these fundamental principles and rules, founded on experience and reason, have found expression in the legal maxims, most of which are derived directly or indirectly from the Roman law. Nowhere is the faculty of clear and terse statement of legal principles more conspicuously exhibited than in the texts of the civil law. Accordingly, while the legal systems of modern civilized nations differ greatly in their technical rules and forms, all of them recognise the value of the simple and apposite statements of fundamental principles embodied in the maxims of Roman jurisprudence.” But all the maxims did not have a respectable origin. Lord Denning in his book “The Family Story” has described his fascination for the use of maxims. He was very fond of a particular maxim: “FIAT JUASTITIA RUAT COELUM” (Justice should be done though the heaven falls). But when he investigated its origin, he discarded the “RUAT COELUM” part of the maxim. According to Lord Denning, if justice is done, the heaven should not fall. They should rejoice. The story as to this maxim as referred by Lord Denning was told by SENECA (dialogues, III, 18). Piso sentenced a soldier to death for the murder of

Gaius. He ordered a Centurion (Commander) to execute the sentence. When the soldier was about to be executed, Gaius came forward himself alive and well. The Centurion reported it to Piso. He sentenced all three to death. The soldier because he had already been sentenced, the Centurion for disobeying orders and Gaius for being the cause of the death of two innocent men. Piso excused it by plea, “FIAT JUASTITIA RUAT COELUM” — let justice be done, though the heaven should fall. Here command of sovereign was equated with justice. But the dictum is not used in this sense. It is always used by the Courts for furthering the cause of justice. The principles enunciated in the maxims should be applied with due care, as there are exceptions to the rule and qualification for applicability of dictum. Maxims are the condensed good sense of notions. These pearls of wisdom are the harbinger of justice. Good many concepts prevalent in legal world owe their origin from the maxims. The concept of natural justice is based on the principles laid down in “AUDI ALTERAM PARTEM” and “NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA” “AUDI ALTERAM PARTEM” (No man shall be condemned unheard). Audi alteram partem literally means ‘hear the other party”. This maxim is based on the principle of natural justice. It means that a person deciding on issue should hear both sides and give each an opportunity of hearing what is being alleged against him. It has long been an accepted rule that no one is to be condemned, punished or deprived of property in any judicial or quasi-judicial proceeding unless he has had an opportunity of being heard. Any person against whom an action is proposed to be taken or whose right or interest is being affected, should be given a reasonable opportunity to defend himself. A decision taken without affording both the parties an opportunity to be heard violates the principles of natural justice. An award made in violation of the above said rule may be set aside. On laying of charges, an opportunity to answer it must be given to an individual alleged to have committed an offence. Sufficient notice also should be given to the person against whom the charge is laid. This rule has a universal acceptance and is founded upon the plainest principle of justice. Thus nobody should be condemned unheard is the basic rule of natural justice. Audi alteram (Hear the other side) embraces the whole notion of fair procedure or due process. The principles of natural justice are not embodied rules and they have been applied by courts in the context of writs of certiorari and prohibition. The breach of natural justice has been recognised as one of the grounds for granting writs. The court will extend the application of the maxims, if the decision of the administrative authority affects the legal rights of the affected party. This rule has two important pillars: (a) Notice of the case to be met, and (b) Opportunity to explain. It is not necessary that the notice should be given in a formal manner. Even oral notice or notice with technical irregularities or with defective wording is sufficient notice if it furnishes an opportunity to the individual concerned to present his case. The person concerned against whom action is proposed to be taken should be given reasonable opportunity to explain and defend himself. “NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA” (No man can be judge in his own cause). It is a fundamental rule in the administration of justice, that a person cannot be judge in a cause wherein he is interested. In the reign of James I, it was solemnly adjudged that the king cannot take any cause, whether civil or

criminal, out of any of his Courts, and give judgment upon it himself; but it must be determined and adjudged in some Court of justice according to the law and custom of England; and the judges informed the king that no king, after the Conquest, assumed to himself to give any judgment in any case whatsoever which concerned the administration of justice within his realm; but these were solely determined in the Courts of justice. Where a judge is interested in the result of a cause, he cannot, either personally or by deputy, sit in judgment upon it. Lord Campbell said that this maxim be held sacred. It is not to be confined to a cause in which judge is a party, but applies to a cause in which judge had interest. Any direct pecuniary or other interest, in the subject matter of enquiry will disqualify a judge, if it be sufficiently substantial to create reasonable suspicion of bias. There is another maxim concerning natural justice: “QUI ALIQUID STATUERIT PARTE INAUDITA ALTERA AEQUUM LlCET DIXERIT, HAUD AEQUUM FECERIT”, which means: He who determines any matter without hearing both sides, though he may have decided right, has not done justice. In other words, as it is now expressed ‘Justice should not only be done but should manifestly be seen to be done’. Maxims are also useful in finding out the ‘MENS LEGIS” (Intention of the Legislature), in construing the meaning of a statute. Some such maxims are discussed here as under:— “EJUSDEM GENERIS” (Of the same class or kind) The maxim serves to restrict the meaning of a general word to things or matters of the same genus as the preceding particular words. In this connection, the following passage from Salmond on jurisprudence (12th Edition, Page 135) is worth quoting: — “This however, is only an application of a common sense rule of language; if a man tells his wife to go out and buy butter, milk, eggs and anything else she needs, he will not normally be understood to include in the term ‘anything else she needs’ a new hat or an item of furniture”. This lucid illustration explains the meaning of the said maxim. “NOSCITUR A SOCIIS” (The meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it). A man may be known by the company he keeps, and a word is known by the accompanying words. Words derive colour from the surrounding words. The coupling of words together shows that they are to be understood in the same sense. Where the meaning of a particular word is doubtful, it may be ascertained by looking at adjoining words. In the construction of statutes, the rule noscitur a sociis is frequently applied, the meaning of a word, and, consequently, the mens legis is ascertained with reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter. The meaning of law can be collected by comparing one part with another and by viewing all the parts together as one whole, and not one part only by itself. “UT RES MAGIS VALEAT QUAM PEREAT” (That the language may rather have effect than be destroyed). The Courts lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed so as to make it effective and operative on the principle expressed in the dictum. However complicated or mind twisting a provision may be, Court will attempt to give it a meaning. When a statute has some meaning even though it is obscure,

or several meanings, even though it is little to choose between them, the Courts have to say what meaning the statute is to bear, rather than reject it as a nullity. The Courts may complain that the enactment is “mind twisting” or an “enigma” yet they do not readily concede that no meaning can be given to it. They strive hard to give meaning and avoid cadaveric consequences. Normally hardship or inconvenience cannot alter the meaning of language implied by the Legislature if such meaning is clear on the face of the statute. ‘NOVA CONSTITUTIO FUTURIS FORMAM IMPONERE DEBET, NON PRAETERITIS” (A new law ought to be prospective, not retrospective, in its operations). Retrospective legislation is never presumed, and therefore a law will only be applied to cases occurring after its date, unless it appears from the statute itself that it is intended to have retroactive effect. Penal laws are never retrospective; but remedial statutes, which are more liberally interpreted, are sometimes allowed retroactive effect. It manifestly shocks our sense of justice that an act legal at the time when it was done should be made unlawful by a new enactment. “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS” (The express mention of one thing implies the exclusion of another). It is an ordinary rule that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorised, under other circumstances than those so defined. Where general words are used in a written instrument, it is sine qua non, in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned, or to be referable exclusively to them, in which latter case only can this maxim be applied. “CONTEMPORANEA EXPOSITIO EST OPTIMA ET FORTISSIMA IN LEGE” (A contemporaneous exposition is regarded in law as the best and strongest). The view, which was taken at the time an Act of Parliament was enacted, can best be explained by those who were acquainted with the circumstances, which called for the enactment or made it expedient. Great regard in construing a statute to be paid to the construction which the sages of the law who lived about the time or soon after it was made put upon it; because they were best able to judge of the intention of the makers at the time when the law was made. In construing old deeds and writings, care must be taken to expound their words according to the meaning which the words bore at the time when they were used, and not according to what these words have come to mean in later time. “QUI HAERET IN LITERA HAERET IN CORTICE” (He who considers the letter of an instrument goes but skin deep into its meaning). The reason and spirit of cases make law, and not the letter of particular precedents. The grammatical construction is not always, in judgment of law, to be followed; and neither false English nor bad Latin makes a deed void when its meaning is apparent. The meaning of particular words, in a statute, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be attained. ABSOLUTA SENTENTIA EXPOSITORE NON INDIGET” (Plain words require no explanation).

When the language of the statute is transparently plain, it is wrong to give it colour according to the temper of time. When the language implied by the enactment is clear, there is no question of interpreting the provisions in any manner except by giving them their plain and obvious meaning. Nebulous concept of the legislative intent cannot be used to curtail the explicit provisions in a statute. The subject of legal maxims has depth of an ocean. To comprehend it within the limit of this paper is like seeing Himalaya in a flash of lightning. I am reminded of the story of the legendary Harvard Law Professor Edward “Bull” Warren. He was so enthusiastic about his subject that he always went on after the bell at the end of the class. His students were continually late to their next class, so they decided to start shuffling their feet to let the Professor know when to stop. The first time they tried it, “Bull” roared: “Quiet! I still have a few more pearls to cast!” I will consider my efforts amply rewarded if this article invigorates the desire among the students to fathom deep in the ocean of knowledge, to find out the priceless pearls of wisdom.