This week's focus on the European Space Agency's Rosetta Mission
dramatically reminds us that human beings are obsessed with solving the
puzzles of our world, and beyond. In order to succeed in answering the
riddles we are presented with, whether they exist in our external or internal
space, we acquire knowledge bit by bit, often generation by generation,
and then seek to generalize rules that we can impose upon these riddles
as a means of testing answers and organizing solutions. Considering that
the Rosetta (named after the Egyptian Stone) orbiter was launched ten
years ago but was conceived of in the 1980's, decades after comet
67P Churyumov-Gerasminko was first discovered, for me this is an excellent
metaphor for how our kind patiently approaches problems by building upon
the insights and discoveries of the past. In many ways, our system of
governance and social interaction follows the same plodding course.
Probably, this is one of the reasons I love being a lawyer - and particularly
one who practices in the rough and tumble, rubber hits the road, area
of family law and divorce: I am inspired to be a problem solver for human,
if not engineering or scientific, dilemmas. As I imagine with the Rosetta
team and its dependence upon complex equations developed over time-spans
far exceeding individual lifetimes, the tools I've learned to use
in assisting my clients originated long before I was born and were developed
in many places and eras. History is, after all, to lawyers what numbers
are to engineers, and I've long been fascinated by the evolution of
Western Civilization in social contexts. I've noted (duh!) that while
we don't behave as if our lives can be reduced to ones and zeros,
still certain themes emerge that can be powerful aids in structuring our
affairs and especially in applying our systems of laws in predictable
and sensible ways.
An often ignored (or more likely forgotten, for lawyers the further we
travel in time away from our law school years) but yet still powerful
organizing and behavior decipherment concept can be found in what are
called "legal maxims." I thought it would be fun, therefore,
to (re?)introduce some maxims to you that might actually have relevance
to family law litigation you are involved with, because under appropriate
circumstances they may help you persuade your family law judge in intuitive
and rational ways that a proposition or outcome you are arguing for has
merit. And, it is always a nice thing to show some depth in your legal writing!
The word "maxim" derives from the Latin word ‘maximus’,
or “greatest", by way of an expression that is ‘
maxima propositio’ (i.e. the "greatest premise"). A maxim is defined by Black’s
Law Dictionary as “an essential legal principle that has been frozen
into a concise expression. Common examples [of maxims] are ‘possession
is nine-tenths of the law’ and ‘caveat emptor’ (let
the buyer beware).” A maxim can be considered similarly to cliché
because both seek to state certain truths in a digestible manner to the
audience. But cliches become "cliche" from being overused in
society, thereby losing their resonance with the intended audience. More
frequently than not, a maxim does not lend itself to colloquialness as
does a cliché. Common synonyms for the word maxim are: saying,
adage, saw, motto, epigram, and proverb.
Maxims originating in the Latin tongue served as a kind of universal legal
language across European boarders for over a millenia, continued in Anglo-American
jurisprudence even after the implementation of the Napoleonic Code in
the rest of Europe, and remain codified today, for example, in the California
Civil Code (Civ. C. § 3509, et seq.) This firm’s
Enlightened Divorce Blog™ covers many areas of California law concerning relationship disputes,
but one area we've not previously discussed is the topic of legal
maxims so I endeavor to remedy that here and now.
Mechanics and Legal Authority of Maxims
Although early California law approved of, and adopted, a number of maxims
it would be incorrect to equate them with the law of California. Their
use and application in any given judicial proceeding must be analyzed
and qualified with reference to specific code sections and case law as
those have greater precedential value and so are superior to maxims in
our state, and likely every other state in this country. Stated another
way, “neither fiction nor maxim may nullify statute.”
Lass v. Eliassen (1928) 94 Cal.App. 175. “The maxims of jurisprudence hereinafter
set forth are intended not to qualify any of the foregoing provisions
of this code, but to aid in their just application” (Civil Code
Maxims are also inferior to a particular statute’s legislative history.
Moore v. California State Bd. of Accountancy (1992) 9 Cal.Rptr.2d 358. A particular code section’s annotation
will usually contain a statement by its authors and/or the Legislature
of the statute’s intended application. Where there is a conflict
between the stated legislative history and a specific maxim, the former controls.
Finally, maxims are inferior to contemporary notions of justice as expressed
in current case law. After all, the law is an evolving thing, and when
judges make law by holdings of cases they are simultaneously filling gaps
in the statutes created by legislatures and responding to the changing
norms and mores of a society. A maxim that was helpful for achieiving
what would have been considered a just outcome 50 years ago might result
in an injustice today, and vice versa.
When a maxim appears in an appellate case, it frequently is being used
by court to help interpret a statute, contract, or other document where
the legislature is silent or ambiguous.
For example, using a contemporary issue, take same-sex marriage and the
expressio unius est exclusio alterius” (i.e. “the expression of certain things in statute necessarily
involves exclusion of other things not expressed”). In 2004 under
the Marriage Protection Act (“MPA”), the definition of “marriage”
was amended to be as between a man and a woman (and that is still the
language of the statute today as set forth in Fam. C. § 300(a), although
this language has been held unconstitutional, but
effective January 1, 2015 this language finally does change . As originally enacted in 1872, former Civ. C. § 55 (from which Fam.
C. § 300 is derived), provided: “Marriage is a personal relation
arising out of a civil contract, to which the consent of parties capable
of making it is necessary. Consent alone will not constitute marriage;
it must be followed by a solemnization, or by a mutual assumption of marital
rights, duties, or obligations.” Noteworthy, there was no use of
gender in defining marriage in California for more than 140 years. By
so defining marriage in terms of gender opposite genders in 2004, the
proponents of the MPA’s enforcement certainly could have, in part,
relied on the maxim “
expressio unius est exclusio alterius” to indicate the proper intent of the amendment was to exclude same-sex
couples by expressing marriage to be between a man and a woman without
the inclusion of other kinds of couples.
Nevertheless, contemporary notions of justice (here, the inability of the
majority to, by the initiative process, limit marriage to opposite sex
couples only) trumped the amended definition of “marriage”
and its aiding maxim in the landmark cases of
In re Marriage Cases (2008) 76 Cal.Rptr.3d 683 [holding that the language of Family Code provision
limiting the official designation of marriage to a union “between
a man and a woman” was unconstitutional, as violating the equal
protection clause of the state Constitution, and thus the offensive language
had to be stricken from the statute, and the remaining statutory language
had to be understood as making the official designation of marriage available
both to opposite-sex and same-sex couples] and
Strauss v. Horton (2009) 46 Cal.4th 364 [holding that the 2004 amendment violated inalienable
substantive Due Process and Privacy rights, and was therefore invalid].
When maxims are used at the trial court level, they are often espoused
by lawyers in argument (and might make their way into a Memorandum of
Points and Authorities in a Family Law matter, or even into Jury Instructions
in a general Civil Law matter). A maxim can give weight and dramatic flare
to an attorney arguing the case’s theme to the judge or jury; indeed,
the truth of many maxims may be considered intuitively obvious, because
they are similar to Rosetta-like equations that speak to basic and universal
truths or consistencies. As such, they have unique almost DNA-like potential
as implements of persuasion.
Discussed below are some codified maxims and my thoughts on particular
applications that may resonate in the Family Law context.
Examples of Codified Maxims in California
As stated above, California Civil Code (Civ. C. § 3509, et seq.) contains
“maxims of jurisprudence,” a collection of but a few legal
maxims given direct recognition and legitimacy by their codification.
Some of my favorites are:
“When the reason of a rule ceases, so should the rule itself.” Civ. C. § 3510.
This maxim fosters a recognition that social morals, technology, etc. change
over time, and the law should keep up with such changes lest it lose it
efficacy and respect by the society living under it. This maxim is often
used to urge a change in existing law; for instance, in California at
least same-sex marriage has only become possible because society's
values and prejudices have changed.
“One must so use his own rights as not to infringe upon the rights
of another.” Civ. C. § 3514.
This maxim deals with an important concept for the proper functioning of
capitalism. The reason capitalism is (or at least has been) considered
“right” in Western Civilization is that it fulfills the object
of utilitarianism: The proper role of government is to make law that provides
the greatest good to the greatest number of people. When healthy markets
exist (i.e. the absence of market failure(s)), the mandate of utilitarianism
is fulfilled because social utility is maximized in the forms of net consumer
surplus (happiness, i.e. the aggregate differential of all buyers in an
economy between the prices actually paid and the maximum prices that would
have been paid by the buyers gained from the use of a resource, be it
a good or a service), and net producer surplus (profits, i.e. the aggregate
differential of all sellers in an economy between the prices actually
sold and the minimum prices that would have been sold by sellers from
the creation of a resource, be it a good or a service). Multiple sources
of market failure exist, including externalities (i.e. one visiting the
cost of his productive activities on another; e.g. the dye factory up
river that kills the fish which are the source of employment and income
for the fishermen down the river) and monopoly (i.e. control and advantage
gained by a singular producer of a good or service such that the monopoly
can charge the buyers more than a market price. This maxim addresses the
need for legal systems to protect against externalities, a prime example
of which is tort law and its general aim not necessarily to punish the
cost-causer, but to compensate the cost-incurer. This maxim also addresses
the need for securities regulation such that no single producer/seller
become too powerful through the use of its property to prevent other producer/sellers
from entering the market and competing.
“Acquiescence in error takes away the right of objecting to it.” Civ. C. § 3516.
This maxim has everyday legal application, particularly in Family Law where
both self-represented litigants and lawyers all too frequently insert
improper forms of evidence into pleadings, including character evidence
of propensity based on past acts, hearsay evidence, evidence concerning
events not within common knowledge by laypersons, evidence without foundation
to indicate how the declarant came to personally know the matter asserted.
Interestingly, California has recently revised the rule of proper evidentiary
objections in Family Law matter by
CRC Rule 5.111 which requires (unless good cause is shown otherwise) written objections
be filed two court days prior to a hearing date or else the objection
be considered waived at the hearing.
“No one should suffer by the act of another.” Civ. C. § 3520.
See my discussion of Civ. C. § 3514, above.
“He who takes the benefit must bear the burden.” Civ. C. § 3521.
I am working on a case where my client transferred her one-half interest
in certain property to her husband in connection with a divorce three
years ago. The parties separated in 2009 and my client ceased any operation
of the business and moved from northern California to southern California.
During the post-separation, pre-judgment period, the husband solely operated
the business, paid my client support in a non tax-deductible manner, and
paid for community property debts (Epstein credits for which he expressly
waived in the parties’ judgment). He didn’t file the business’
and his personal taxes for 2010 and 2011 until sometime in 2013. When
he finally did file, rather than taking the business’s income as
his salary and wages (therefore taxable solely to him on a personal level)
such that the business’s profits were zero for 2010 and 2011, he
claimed zero wage/salary business expresses (contrary to his own QuickBooks
method of accounting that allocated the business’s incomes to him
as wage/salary for those years), claimed all post-operation-cost business
revenue were profits, and issued two Schedule 1120S Form K-1s (the business
was an S corporation) to the IRS and California Franchise Tax Board under
my client’s name and social security number for one-half of the
business’s profits for 2010 and 2011 (and said 2010 and 2011 Form
K-1s stated those profits were, in fact, distributed to her). My client
never received profit distributions from the business during those years.
What he has attempted to do, in effect, is to recapture the benefit of
waived Epstein credits and support payments, and use the IRS as his attack
dog on my client in an extra-judicial manner.
This maxim will be in the opening lines of my Memorandum of Points and
Authorities for the persuasive effect it brings to the court.
“One who grants a thing is presumed to grant also whatever is essential
to its use.” Civ. C. § 3522.
For example, a person cannot sell a person an interior parcel of their
property without giving the person a means of access; this is the genesis
of the law of easements for ingress and egress.
“For every wrong there is a remedy.” Civ. C. § 3523.
See my discussion of Civ. C. § 3521, above. I am approaching the tax
issues for the wife in Family Law court as a breach of fiduciary duties
(both of care and of loyalty) in that the husband fraudulently claimed
to have caused the business to directly pay my client profits (which it
did not), and the husband directly benefited from shifting half of his
tax burden to my client.
“No (person) is responsible for that which no (person) can control.” Civ. C. § 3526.
“The law helps the vigilant, before those who sleep on their rights.” Civ. C. § 3527.
See my discussion of Civ. C. § 3516, above, relating to timely objections.
The concept of this maxim is also that, if a party unreasonably delays
bringing a legal action, it is no longer considered fair to hear the claim
due to changes in circumstance brought upon by the delay.
“The law respects form less than substance.” Civ. C. § 3528.
This is an interesting one because I love winning on technicalities - but
this is because Mr. Arnold and I believe in following the rules while
others seem to ignore or be immune to them. My remedies law professor
said one day “any lawyer can win on the facts; good lawyers win
on the procedure.” I have taken this nugget to heart, notwithstanding
its contradiction to the above-quoted maxim. As such, I always first look
for the procedural flaws in a motion I am opposing before I deal with
the merits of the other side’s position (and good lawyering requires
me to do so).
For example, a new client (husband) comes into my office with a divorce
action and his wife’s motion for spousal support in hand (no kids).
The wife is self-employed and claimed she earned only $1,000/month (minimum
wage will pay $1,500 if working 40 hours/week). Wife does not include
a profit and loss statement or Schedule C from her taxes as required by
California’s Income and Expense Declaration (Form FL-150), such
form being required to be “completed” by CRC Rule 5.260 in
connection with a spousal support request. Effect: I get a lower spousal
support order for my client by agreement, or else she faces a denial of
spousal support at the time of the hearing.
“Things happen according to the ordinary course of nature and the
ordinary habits of life.” Civ. C. § 3546.
In other words, there is always an argument that Newtonian physics apply
to a set of allegations/events, and common sense about human behavior
is also a valid source of arguments.
Other non-codified maxims and phrases from Roman law exist in modern jurisprudence,
and many are the basis for our fundamental notions of Anglo-American justice.
‘Audi alteram partem’ (meaning “to hear the other side”).
This maxim refers to the substantive Due Process concept that a person
cannot be judged fairly unless the facts and arguments for and against
the person have been heard by the decision-maker.
‘Cogitationis poenam nemo patitur’ (meaning “nobody suffers punishment for mere intent”).
This maxim underscores a fundamental concept in law (particularly criminal
and tort), that both an act (‘
actus reus’) and a concurrent mental state (‘
mens rea’) must be established against the party charged to establish legal
responsibility or liability.
‘Cuius est solum eius est usque ad coelum et ad inferos’ (meaning “for whoever owns the soil, it is theirs up to Heaven and
down to Hell”).
This maxim applies to real property ownership to not only the surface of
land, but also to the air above and materials below the surface. Historical
legal applications include zoning laws regulating heights of buildings
(Palm Springs has a four story limit), fences (most cities will not allow
fences higher than six feet in residential neighborhoods), and mineral
rights (look at your home’s deed if you live near old mines; you
might find a reservation of rights by a prior land owner for things like
gold, silver, oil, or uranium the legal description of your ownership
De minimis non curat lex’ (meaning the “law does not concern itself with the smallest of things”).
This maxim indicates that must be a minimal threshold showing of harm or
impact to justify a legal action. For example, a person might have acted
in a negligent manner, but if no quantifiable monetary harm can be established
as a consequence, then there is no cause of action against the negligent actor.
‘Dubia in meliorem partem interpretari debent’ ( meaning doubtful things should be interpreted in the best way).
This maxim indicates that if something is not proven by some threshold
showing of evidence (i.e. the standard of proof such as preponderant or
beyond a reasonable doubt), the accused should be given the benefit of
‘Ex turpi causa non oritur actio’ (meaning “that from a dishonorable cause a legal action does not
This maxim is commonly conceptualized as the unclean hands principle; a
person should not benefit from their own wrongdoing whether or not intended.
‘Fiat justitia et pereat mundus’ (meaning “let there be justice, though the world perish”).
This maxim means that just outcomes are more important than immediate consequences.
A prime example might be racial integration in public schooling in the 1960s.
‘Ignorantia juris non excusat’ (meaning ignorance of the law does not excuse a violation of it).
As Indio family court Judge Otis Sterling will remind the audience of Dept.
2J (80% of which if self-represented Family Law litigants) in his opening
admonition, everyone going before the bench is going to be held to the
same standards as lawyers.
‘Leges humanae nascuntur, vivunt, moriuntur’ (meaning “the laws of man are born, live, and die”).
This maxim indicates that laws are made by men in the times and context
from which they give rise, are in force for a period while applicable,
and then can become obsolete. See my discussion of Civ. C. § 3510, above.
‘Lex retro non agit’ (meaning “the law does not operate retroactively”).
This maxim is enshrined in the United States Constitution’s prohibition
against ex post facto law, at Art. I, section 9.
‘Nemo judex in sua causa’ (meaning “no one shall be a judge in his own case”).
This maxim is designed to prevent judicial conflicts of interest, whether
actual or by appearance. Judicial systems must have no suspicion of impropriety
of self-interest in the outcome of a case. Judicial officers having any
kind of interest in a case, be it owning stock in a litigant corporation,
or having a child in the class of a teacher litigant before the officer,
s/he must recuse him/herself.
‘Novus actus interveniens’ (meaning “a new action coming between”).
In establishing liability, the law often requires evidence showing a chain
of causation between an act and a result. This maxim refers to a break
in the causal chain where some intermediate event has occurred affecting
a link in the logical chain of events.
‘Obiter dictum’ (meaning “a thing said in passing”).
In case law, appellate judges often make a comment on a point of law which
is not directly relevant to the matter being analyzed in the appellate
decision. As such, the comment does not necessarily serve as a precedent
from the appellate case decision. However, the comment can still be persuasive
on future cases for which the comment is applicable.
‘Pacta sunt servanda’ (meaning “agreements must be kept”).
This is a fundamental point of contract law, and in turn has everyday application
in, for example divorce settlements. See my footnote 1, above.
‘Qui facit per alium facit per se’ (meaning “one who acts through another, acts himself”).
This maxim is the basis for agency law, which generally holds that the
the hirer of the services of another is responsible for those actions
of the hiree (respondeat superior), and also that knowledge of the hiree
is imputed to the hirer (and vice versa).
‘Ultra posse nemo obligatur’ (meaning “no one is obligated (to do) more than he can do”)
This maxim is directly applicable to family law pendente lite spousal support
Fam. C. § 3600 makes the basis for temporary spousal support the supported party's
need and the supporting party's ability to pay.
Whether you are a self-represented party, or an attorney with tons of experience
under your belt, if you've got a case pending before the family law
courts of California then you are likely faced with a seeming impenetrable
veil of quandaries that, hopefully, you are driven to solve. This yearning
to impose order (according to our respective values) upon our own tiny
portions of the Universe is just part of our DNA. But, the lessons and
wisdom of the past facilitates our ability to navigate the present, and
this is as true with the law as it is in the sciences. Learning a few
maxims may plump up your persuasion toolbox in ways that you'd not
However, I don't expect you to be able to speak these phrases unless
you were a Latin student .... Please don't expect me to either; my
normal conversation is far more interesting!
Author: Michael C. Peterson, Esq.