Home Maxims Incorporation of the maxims in Indian laws and their importance

Maxims

Incorporation of the maxims in Indian laws and their importance

February 23, 2021

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This article has been authored by Sushmita Choudhary, from New Law College, Bharati Vidyapeeth University, Pune. It is a detailed article which talks about the meaning, origin, significance, drawbacks and usages of maxims in the legal sphere.

Table of Contents

Introduction

A legal maxim is a universally accepted principle or proposition of law or a legal policy generally stated in the Latin language. The Latin maxims mostly arrived from the Medieval era in the European states that considered Latin as their legal language. A legal maxim is brief-expression seeming like a term of any fundamental rule. It is often instructive and relates to some specific actions. These principles enable courts to deliver justice in a more pristine manner by applying the existing laws in deciding issues fairly. Maxims don’t possess the authority of law but when they are incorporated while deciding issues or framing laws, they mould into laws and form a sound basis of judgments.

Meaning

The term Maxim is the Latin derivation of ‘axioma’ which means the first principle, for instance, geometry. Axioms being first principles self-evident in nature. all the subsidiary prepositions could be deduced from them but they themselves were underived. They held their own authority. so, a legal Maxim Would be a self-evident first principle without any contradiction.

Michael Polanyi, a Hungarian-British polymath who made a profound contribution both to the philosophy of science and social science, said, “Maxims are rules, the correct application of which is part of the art which they govern”.

Sir James Fitzjames Stephen, an English lawyer, judge and writer said, “It seems to me that legal maxims, in general, are little more than pert headings of chapters. They are rather minims than maxims, for they give not a particularly great but a particularly small amount of information. As often as not, the exceptions and disqualifications to them are more important than the so-called rules”.

Sir James Mackintosh, a Scottish jurist, Whig politician as well as historian made his statement on maxims as follows, “Maxims are the condensed Good sense of Nations”.

Origin

Most lawyers love to juggle up with Latin phrases. The reason for this has been that ancient Rome’s legal system has always had a strong impact on the legal systems of many Western countries. It lies behind the fact that most parts of Europe, North Africa and the Middle East had been conquered by the Romans. The Roman motto was Divide et impera which means divide and conquer in Latin.

As the Romans went on conquering Nations, they set out to Latinise the barbarians which meant anyone who was not Roman. Apparently, their goal was to teach others how to be real Romans. When the Roman Empire slowly crumbled and lost its significance the new system in these lands eventually went on to adapt the already existing legal system. England along with most of its former colonies which also include India use a variation of the old Roman law which is largely called ‘common law’. This is why lawyers love to use those Latin phrases. English legal terms are filled up with numerous Latin words and phrases.

Significance

Legal maxims have become a part and parcel of daily lives of legal professionals. The influence of these maxims has not only touched lawyers and law students but also common folks. Legal maxims are scattered in every legal document right from statute to books or journals related to law. Legal maxims have modified the language.

Some of the importance of legal maxims are as follows:

It is used to avoid the usage of long definitions. We use it as a single word for return, for example, take a maxim ‘ab initio’. Its meaning is ‘from the beginning’ or ‘from the very start of something’. So instead of writing it so long, we use the word ab initio which is helpful enough in the practical situation.
Legal maxims, when used in the right context, makes the language very clear. Thomas Hobbes, an English philosopher said that legal maxims are of the same strength as that of acts and statutes. Francis Bacon, another leading philosopher, in the preface of his book ‘Maxims of the law’ said that maxims would be used in “deciding doubts, and helping soundness of judgment, but, further, in gracing argument, in correcting unprofitable subtlety, and reducing the same to a more sound and substantial sense of law, in reclaiming vulgar errors, and, generally, in the amendment in some measure of the very nature and complexion of the whole law.”
The repetitive nature of some of the maxims like ‘bona fide’ which means ‘in good faith’ has become a usage of the regular folks also. They are also used in different judicial proceedings regularly. The term ‘per se’ that means ‘by itself’ is also Latin which is used regularly in daily lives. There are hundreds of legal maxims which are often used for elucidating a legal principle, proposition or concept.
The essence of the maxims is a very deep and human Ethic. The maxims are generally Incorporated in the form of human rights and environmental principles.

Drawbacks

Maxims have often been the subject of considerable discussion amongst historians of the legal field considering the different theories of maxims which were comprehended and the subsisting relationship between maxims and law. However, the significance of maxims in legal theory was not found in legal practice. Various law reports suggest that whatever their theoretical importance is maxims were not enough to resolve the actual life problems. Diving deeper into the investigation of maxims in legal practice races several methodological problems.

Early modern law reports were generally not written by the lawyer whose argument was reported rather it was written by someone else. The reports were not generally intended to be written in a word by word transcript of proceedings. Hence, it cannot be presumed that the language used in the report was also used in court.
There was a diversity associated with the interpretation of the maxims which was a problem already recognized by some early writers. For example, some writers have a difference of opinion over maxims and rules. some consider them identical why some considered them different. The wildest difference can usually be overcome when considering the theoretical discussions practitioners do not seem to have been concerned to distinguish; writers may make their preferred usage explicit by applying a range of vocabulary in a way that expresses some assessment regarding whether different words that were used functioned only as synonyms or as different concepts.
In the modern-day, the assumption is that legal maxims are mere brief Latin statements. This has been a cause of significant problems for some historians, who have interpreted maxims wherever Latin appears in law reports. Early-modern writers on maxims, as well as references to ‘maxims’ in law reports, are not limited to Latin statements. Early-modern lawyers appear to have freely stated maxims in both Latin and the vernacular, sometimes in the same work. All statements in Latin should not be regarded as maxims.

Usages in case laws

Here are some maxims which have been used often while deciding judgments in case laws:

Ab initio (from the very beginning of the law/ act)

The Supreme Court used the Latin term ab initio to arrive at a conclusion in Delhi Development Authority vs. Kochhar Construction Work and others. In this case, it decided that the proceedings were ab initio defective and could not be instituted because the firm in whose name the proceedings took place was not registered at the date of the institution of the proceedings.
In Manjeet Singh vs. Parson Kaur, the Supreme Court decided that void marriages are void ab initio which means that the marriage never came into existence in the eyes of law.
In R Rajasekhar and others vs. Trinity House Building Cooperative Society and others, the Supreme Court held that those transactions of the sale made during the pendency of proceedings were deemed to be wholly illegal in the eyes of law and therefore void ab initio.
In Shiv Kumar and others vs. Union of India, the Supreme Court held that a purchaser after being served with the notification under Section 4 of the Land Acquisition Act, 1894 does not require any right in the land because the sale is deemed to be void ab initio and therefore, the purchaser has no right to claim land under the policy.

Actus Dei Nemini Facit Injuriam (law holds no man responsible for the Act of God)

In Mali Ram Mahabir Prasad vs. Shanti Debi and others, the High Court of Patna held a strike of the non-gazetted employees in the civil court to be an act of God and decided the applicability of the Maxim Actus Dei Nemini Facit Injuriam in such cases. The court further stated that in any abnormal situation which is beyond the control of any litigant, the courts should not demand rigid adherence to the procedural law. Such incidents are usually covered by the expression act of God. Therefore, the maxim actus Dei Nemini Facit Injuriam finds its full applicability here.

Actio Personalis Moritur Cum Persona (a personal right of action dies with the person)

In Girja Nandini And Ors vs. Bijendra Narain Choudhury, the Supreme Court referred to this maxim and held that it has a limited application. It is valid in a limited class of actions ex delicto like damages for injuries not causing the death of the party such as defamation, assault or other actions. An action or claim for the rendition of account is not a personal claim and does not fall within the enumerated classes. The claim does not extinguish if the party who claims an account or the party who is called upon dies. Hence, this maxim would not hold any weight here.

Actus Curiae Neminem Gravabit (an act of the court shall prejudice no man)

In Jang Singh vs. Brijlal and Others, the Supreme Court consisting of a three-judge bench held if there is a mistake made by the court in delivering the information, the responsibility of the litigant does not end but is at least shared by the court also. If the litigant acts on the faith of that mistaken information, the Courts have no authority to hold him responsible as it would be holding him responsible for a mistake which it itself caused. It further went on to say, “there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake”.
This is aptly encapsulated in the maxim ‘Actus curiae neminem gravabit’. Thus, taking into account the mistake of the District Court which needed to be corrected, the parties were relegated to the position they were in when the error had been committed by the Court, which the SC rectified nunc pro tunc.

Actus Non-Facit Reum Nisi Mens Sit Rea (the intent and act must both concur to constitute the crime)

In R. Balakrishnan Pilai vs. State of Kerala, it was held that a man who has violated criminal law would be attached to criminal guilt. However, the rule is not absolute as it meets with certain limitations inherent from the Latin maxim Actus Non-Facit Reum Nisi Mens Sit Rea which indicates that there can be no crime without the presence of a guilty mind. To make a person liable for a crime, it must be proved that the guilty act committed by him was followed by a guilty mind too. Thus, there are two components of every crime- a physical element(actus reus) and a mental element (mens sit rea).

Conclusion

Legal maxims are entertaining and their expressive wisdom meets with the approval of modern law students and legal professionals. That’s why it is very common to find them throwing such maxims often during arguments. Commentaries on the maxims in law libraries generate historical curiosities. They still serve as guiding principles for legal literature.

References

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