The More Human Puzzles Change, the More They Remain the Same!
Author: Michael C. Peterson, Esq.
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!
What Is a Maxim?
Maxims are frequently written in italicized Latin (such as the phrase ‘ caveat emptor’) because of their origination in connection with ancient legal scholars’ pithy written statements of Rome's laws. Roman law itself began more or less as a collection of maxims, and not surprisingly these later became the well-spring for much of European law until the shift in favor of the Napoleonic Codes that began the early 1800s with the French Revolution, and a new enlightened emphasis on equity for the masses - rather than only for the privileged few. In this way, maxims can be likened to the basic equations that made the Rosetta team's mission success possible.
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 § 3509).
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 maxim “ 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. They include:
• ‘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 interest).
• ‘ 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 the doubt.
• ‘Ex turpi causa non oritur actio’ (meaning “that from a dishonorable cause a legal action does not rise”).
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 proceedings; 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 considered before!
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.