A Maxim is “an established principle or proposition, a principle universally admitted, as being just and consonant with reason.” [Bouvier’s 1856 Law Dictionary] Maxims in law or commerce are akin to axioms in geometry. They are the principles and the authority which stems from the general customs or Common Law of the land. As such, they are often construed to have the same strength as acts of a legislature or government statutes.
The Maxims of Commerce, for example, are considered foundational, invariant, necessary, and sufficient. Inasmuch as Commerce is antecedent to and actually more fundamental to society than courts or legal systems, the Maxims of Commerce exist and function without respect to legal statutes and judicial systems — even while the contrary is not true. The ten Maxims noted below, can be considered to be the economic extension of the justice aspect of the Nature of Law in society and are universal in nature.
The Maxims of Commerce [From Redemption in Law, Theory and Practice, BBC of America, 1999, 2000] are:
A workman is worthy of his hire. A corresponding legal maxim is: “It is against equity for freemen not to have the free disposal of their own property.” A portion of the basis for this maxim can be found in Leviticus 19:13, Matthew 10:10, Luke 10:7, and II Timothy 2:6. [Note: the use of Biblical precedence can be dangerous in that some “laws” may be in flux from one age to another, as illustrated in the section on Law Questions.]
All are equal under the law. Legally, “No one is above the law”, with equality being the base of moral and Natural Law, as well as the “inalienable rights.”
In commerce, truth is sovereign. Legally, “To lie is to go against the mind.”
Truth is expressed by means of an affidavit. An affidavit is a solemn, unequivocal oath designed to express truth without evasion, concealment, deception or insincerity. It is distinguished from “testimony” in that an affidavit is not subject to cross examination. With respect to oaths, we can note: Numbers 30:2 and Matthew 5:33.
An unrebutted affidavit stands as truth in Commerce. Legally, “He who does not deny, admits” or “silence implies consent.”
An unrebutted affidavit becomes the judgment in Commerce. Legal: court proceedings are a contest of affidavits, wherein the points remaining unrebutted in the final analysis stand as truth, and the matters to which the legal judgment is applied.
A matter must be expressed to be resolved. Legal: “He who fails to assert his rights, has none.”
He who leaves the field of battle first loses by default. Legal: “He who does not repel a wrong when he can, occasions it.”
Sacrifice is the measure of credibility. Legal: “He who bears the burden ought also to derive the benefit.” Basically, anyone who is not damaged, put at risk, or willing to swear an oath on his liability for the truth of his statements, has no basis to claim the spoils.
A lien or claim can be satisfied only through rebuttal by counter affidavit point-for point, resolution by jury, or payment. Legal: “If the plaintiff does not prove his case, the defendant is absolved.”
The Maxims of Law are based in part upon the Maxims of Commerce, and also Natural Law. The general difficulty in a court of law, however — and despite the obvious justice and fairness of many such Maxims — is applying the maxim to the case at hand. This is due in part to the uncertainty from where the maxim first arose, and whether or not it is applicable to the case, or if the case is an exception to the apparently general rule.
The following are a few of the more noteworthy maxims.
An act done by me against my will, is not my act.
What is good and equal, is the law of laws.
Points of law are not laws.
No one is punished for merely thinking of a crime. [But the movie, Minority Report, might make you wonder if we’re in danger of losing this maxim.]
No man ought to derive any benefit of his own wrong. [Enron executives please note.]
Consent, not lying together, constitutes marriage. [This should be fodder for more than one full-bodied discussion — pardon the pun.]
Consent makes the law. A contract is a law between the parties, which can acquire force only by consent.
Advice, unless fraudulent, does not create an obligation. [Note the emphasis!]
Custom is another law.
A prescriptive and legitimate custom overcomes the law. [i.e. Common Law rules over statutory law — but don’t count on such a maxim being admitted in present day courts!]
Custom leads the willing, law compels or draws the unwilling. [See Nature of Law.]
There is no disputing against or denying principles. [It’s just regularly done! Sigh.]
The agreement of the parties makes the law of the contract. [Not the statutes!]
The agreement of the parties overcomes or prevails against the law. [ditto]
A contract founded on an unlawful consideration, or against good morals, is null.
He who receives the benefit should also bear the disadvantage. [Risk Û Reward]
Whoever pays by mistake what he does not owe, may recover it back; but he who pays, knowing he owes nothing; is presumed to give.
Which ever of two parties has the division, the other has the choice. [A divorce tool?]
It is a fault to meddle with what does not belong to or does not concern you.
Let the punishment be proportioned to the crime.
A concealed fault is equal to a deceit.
One making a voluntary confession, is to be dealt with more mercifully. [Good luck!]
When two things repugnant to each other are found in a will, the last is to be confirmed.
Time runs against the slothful and those who neglect their rights. [Take heed!]
The judges answer to the law, the jury to the facts.
A debtor is not presumed to make a gift.
vA delegated authority cannot be again delegated.
vThe power which is derived cannot be greater than that from which it is derived.
vEquality is equity.
vEquity looks upon that as done, which ought to be done.
vOne who exercises jurisdiction out of his territory is not obeyed with impunity. [Duh!]
vFacts are more powerful than words.
vAn act of a judge which does not relate to his office, is of no force. [Jurisdiction!]
vNegative facts are not proof. [But unfortunately used with impunity in modern times.]
vIt is a fraud to conceal a fraud.
vWhat belongs to us cannot be transferred to another without our consent. [This must be understood with one qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.]
vIgnorance of fact may excuse, but not ignorance of law. [Law, of course, is not taught anywhere but in Law School — so that all other citizens are basically ignorant of the law! This is not an oversight or accident. The ignorant are easier to control.]
vThe heir succeeds to the restitution not the penalty. [I.e. you can inherit assets, but not necessarily liabilities — except for the assets used to pay off an estate’s liabilities.]
vA part is included in the whole.
vTo a judge who exceeds his office or jurisdiction no obedience is due.
vJuries are the judges of the facts. [!]
vGross negligence is equal to fraud.
vThe contract makes the law.
vThe law always gives a remedy. [This is absolutely fundamental to any system of law!]
vThe law regards the order of nature. [Natural Law! Again, not statutory law.]
vMarriages ought to be free. [This was not intended to be comedy relief, but…]
vA maxim is so called because its dignity is chiefest, and its authority most certain, and because universally approved by all. [Seen any you haven’t liked so far?]
vNecessity is the law of a particular time and place.
vNecessity makes that lawful which otherwise is unlawful. [The “mother of invention”?]
vNecessity gives a preference with regard to private rights.
vPublic necessity is greater than private. [Ah! Questionable?]
vA double negative is an affirmative. [Two wrongs do not necessarily make a right, but three lefts do.]
vNo one is allowed to incapacitate himself.
vNo man acts against himself; therefore no man can be a judge in his own cause.
vNo one can be punished twice for the same crime or misdemeanor.
vNo one is bound to sell his property, even for a just price. [except Eminent Domain]
vA citizen cannot be taken by force from his house to be conducted before a judge or to prison. [This maxim of “Roman liberty” is much the same as that “every man’s house is his castle,” but don’t rely on it unless you have one inpenetrable moat around your castle.]
vNo one should lose his property without his act or negligence.
vNo one is bound to accuse himself. [Self-defense is always allowable.]
vIf you know not the names of things, the knowledge of things themselves perishes.
vHe who errs does not consent.
vOfficers may not examine the judicial acts of the court. [Lawyers are officers of the court, and thus hiring one automatically eliminates certain rights for the accused.]
vThe origin of a thing ought to be inquired into.
vThings unite with similar things. [Like attracts like.]
vPlain truths need not be proved.
vPrecedents has as much law as justice. [There is an ancient law which claims that older law has precedence over more recent law. In other words, once a law is established (which does not contradict previous law), then it cannot be amended by later law. This aspect could be applied to ancient maxims having precedence over newer statutory law.]
vWords spoken to one end, ought not to be perverted to another.
vSeveral co-heirs are as one body, by reason of the unity of right which they possess.
vSeveral partners are as one body, by reason of the unity of their rights.
vThings which belong to the person ought not to be separated from the person. [“Thou shalt not steal”, among other things.]
vLaws which derogate from the Common Law ought to be strictly construed. [The US Constitution, Amendment VII, states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” This provision is routinely ignored in modern day courts in the United States.]
vThings introduced contrary to the reason of law, ought not to be drawn into precedents.
vWhatever is inserted for the purpose of removing doubt, does not hurt or affect the Common Law.
vWhat is done contrary to the custom of our ancestors, neither pleases nor appears right.
vWhatever appears within the reason of law, ought to be considered within the law itself.
vEvery jurisdiction has its bounds.
vHe who is in the womb, is considered as born, whenever it is for his benefit. [Another fruitful one for heated discussion!]
vHe who uses his legal rights, harms no one.
vHe who does anything by command of a judge, will not be supposed to have acted from an improper motive, because it was necessary to obey.
vWhat is necessary is lawful.
vThe reason of the law is the soul of the law. [I.e. the intent of the law!]
vIn default of the law, the maxim rules. [I.e., if there is no applicable law?]
vThe order of things is confounded if every one preserves not his jurisdiction.
vRights never die.
vAn oath has in it three component parts – truth, justice and judgment; truth in the party swearing; justice and judgment in the judge administering the oath.
vA foolish oath, though false, makes not perjury.
vIt is natural that he who bears the charge of a thing, should receive the profits.
vThe claimant is always bound to prove: the burden of proof lies on him.
vThe meaning of words is the spirit of the law.
vThe sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject-matter. [Nothing out of context.]
vPower should follow justice, not preceed it.
vIf there be no conjecture which leads to a different result, words are to be understood, according to the proper meaning, not in a grammatical, but in a popular and ordinary sense.
vIf a man dies, leaving his wife pregnant, he shall not be considered as having died childless. [The same does not apply for a woman. Obviously.]
vAn affirmative stature does not take from the common law. [Common Law rules!]
vEverything is permitted, which is not forbidden by law. [More Common Law!]
vWhere there is a right, there is a remedy.
vWhen the common law and statute law concur, the common law is to be preferred.
vWhere two rights concur, the more ancient shall be preferred.