The true method of making the application is to ascertain how the maxim arose, and to consider whether the case to which it is sought to be applied is of the same character, or whether it is an exception to an apparently general rule. The application of the maxim to the ease before the court is generally the only difficulty. They are mostly 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. Maxims have been divided, as to their origin, into three classes: Roman, Roman modified, and indigenous 20 L. They are almost invariably misleading they are for the most part so large and general in their language that they always include something which really is not intended to be Included in them.” Lord Esher, M. “I need hardly repeat that I detest the attempt to fetter the law by maxims. They are a sort of legal shorthand, useful to the lawyer, but dangerous to any one else.” He considers that “maxims are not without their uses, though they are much too absolute to be taken as trustworthy guides to the law. 638) gives a list of 39 of the “more important and familiar maxims” with brief comments and references.

“Maxims are not all of equal value some ought to be amended and others discarded altogether they are neither definitions nor treatises they require the test of careful analysis they are in many instances merely guide-posts pointing to the right road, but not the road itself.” Prof. “Many of the sayings that are dignified by the name of maxims are nothing but the obiter dicta of ancient judges who were fond of sententious phrases, and sometimes sacrificed accuracy of definition to terseness of expression and some. “We believe that not a single law maxim can be pointed out which is not obnoxious to objection.” Towns. As often as not the exceptions and qualifications to them are more important than the so-called rules.” 2 Steph.

They are rather minims than maxims, for they give not a particularly great, but a particularly small, amount of information. Later writers place less value on maxims thus: “It seems to me that legal maxims in general are little more than pert headings of chapters. The alteration of any of the maxims of the common law is dangerous 2 Inst. Maxims of the law are holden for law, and all other cases that may be applied to them shall be taken for granted Co. This determination belongs to the court and not the jury Termes de la Ley Doct. 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. Maxims in law are said to be somewhat like axioms in geometry.

In some editions of the Corpus Juris maxims are given under the name of Regulae et Sententiae Juris. In Papinius it is more like responsa prudentis. Definitio, in Labeo, is really a rule of law. Sententia is used in several texts as equivalent to regula. The Digest makes the line between regula, definitio, and sententia a narrow one. Regula appears not to be quite the same thing as maxim. He says in another place: “A maxime is a proposition to be of all men confessed and granted without proofs, argument, or discourse.” See 30 L. Doctor and Student defines maxims as “the foundations of the Law and the conclusions of reason, and therefore they ought not to be impugned, but always to be admitted.” Coke says they are “a sure foundation or ground of art and a conclusion of reason, so sure and uncontrolled that they ought not to be questioned,” and that a maxim is so called “guia maxima ejus dignitas et certissima authoritas, atque quod maxime omnibus probetur.” Co. The word maximum or maxima does not occur in the Corpus Juris in any meaning resembling that now borne by it the nearest word in classical Roman law is regula Fortescue identifies the two terms, and Du Cange defines maxima as recepta sententia, regula, vulgo nostris et Anglis maxime. There are none in the Twelve Tables, and they appear but rarely in Gaius and the ante-Justinian fragments, or in the older English text-books and reports. Maxims are said to have been of comparatively late origin in the Roman law. A principle of law universally admitted as being just and consonant with reason.

Mixta affectus english translation