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1987
Ancient Legal Maxims and Modern Human Rights
J. Stanley McQuade
Campbell University School of Law,
mcquades@campbell.edu
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Recommended Citation
J. Stanley McQuade,
Ancient Legal Maxims and Modern Human Rights,
38 N. Ir. Legal Q. 299 (1987).
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Winter,
19871
ANCIENT
LEGAL
MAXIMS
ANCIENT LEGAL MAXIMS AND MODERN
HUMAN RIGHTSt
INTRODUCTION-THE RISE
AND
FALL OF THE
LEGAL
MAXIM
One of the most striking differences between a modern English
law book and one from an earlier period lies in the place given to maxims.
Until the middle of the nineteenth century books were still being
published' which appeared to regard the ancient maxims as central
pillars of the law. The teaching of the law was organised round them.
They were cited reverentially in court. Since that time the maxims have
steadily declined in importance. From guiding principles they became
interesting illustrations and have now all but disappeared from legal
literature. Commentaries on the maxims remain in law libraries but they
are largely historical curiosities. If they are referred to at all, it is for their
entertainment value, not as legal authorities.
They are indeed entertaining and their pithy wisdom still meets
with the approval of the modern reader but I wish neither to bury them
nor to praise them but to restore them to whatever place in the law that
they merit. I believe that the time is ripe for such a restoration for a
number of reasons but especially because of a resurgence of interest
among lawyers in morals in general and human rights in particular. The
essence of the maxims is a very lofty and humane ethic: and the current
revived interest in human and environmental values might be considered
a rebirth of the spirit of the maxims. Dinosaurs though generally extinct
are said to survive in one form, namely birds. It may be thought, then,
that the maxims are still alive and well at least in the form of human rights
and environmental principles.
I propose to follow this theme in a little more detail; to compare the
two forms of legal principle, the ancient and the modern; to see whether
we can be satisfied with contemporary human rights theories and let the
dead rest in peace, or whether we need to take at least some of the old
maxims and reintroduce them to improve our stock of jurisprudential
ideas.
THE TRADITIONAL MAXIMS-AND WHY THEY WERE CONSIDERED
IMPORTANT
We tend to think of legal maxims as epigrams, little nuggets of legal
wisdom-which they are. They are salty sayings in Latin, Norman-
French and even English, culled from all sorts of sources and incorpo-
rated into legal opinions and texts. But they did not function as mere
t
[Editorial note] The slightly amended text of a public lecture delivered by Professor
McQuade in the Queen's University of Belfast,
11
December
1986.
1
Herbert Broom's,
Selection of Legal Maxims
was first published in 1845. The fifth
edition was published in
1870.
300
NORTHERN IRELAND
LEGAL
QUARTERLY
[Vol. 38,
No.
4
epigrams. They were not illustrative nor decorative sayings nor "clin-
chers" added at the end of a legal argument. They were the guiding
principles of legal argument. They were referred to collectively as
"regula".
2
The word is singular and means not rules but indeed a ruler, a
measuring device, a blueprint, a gold standard, to which more particular
things could be compared to see if they passed muster.
The mention of an exemplar, suggesting an ideal form, should alert
us to the possibility that Greek idealist philosophy is lurking somewhere
in the background and it is. The term maxim is the Latin equivalent of
axioma
3
meaning a first principle, for example, of geometry. Axioms
were, of course, self-evident principles. All the lesser propositions could
be deduced from them but they themselves were underived. They stood
on their own authority. They were either obviously true or else could not
be denied without self-contradiction. A legal maxim, then, would be a
self-evident first principle of legal theory from which more particular
propositions could be derived.
It may seem odd to us that lawyers could ever have looked on law as a
species of geometry, but they did. Indeed it would have been surprising
if they did not. Until relatively recent times all science was regarded thus
and since academically inclined lawyers have always insisted that the
study of law was a science, it had to be treated in this way. They were
wont to describe a system of law as
"ratio".
The term
"ratio",
like our
word reason, has many meanings. It can refer to the faculty of reason or
the reasoning process or it can refer to the product of reasoning, a
rationally structured body of knowledge. Geometry considered as a
system of interrelated propositions could thus be described as
"ratio".
The term reason was also applied to the first principles of such a system,
and such principles were said to be supremely or optimally rational since
they justified the whole. All propositions of law could be derived
from such general first principles and these could properly be called
maxims.
The clearest example of this way of thinking is Sir John Fortescue's
Dialogue in Praiseof the Common Law,
first issued in Latin in 1537, in
which he endeavours to persuade his pupil, the young prince in exile,
that knowledge of the law is as necessary to a king as skill at arms.
Answering his pupil's objection that such knowledge would take too long
to acquire, the Chancellor states that a sufficient knowledge of the
principles, all that the king would require, could be managed in a year.
He says-
2
3
Pope Boniface VIII and Francis Bacon both entitled their collection of maxims
"Regula".
The Greek
"axiomata"
is usually translated into Latin as
"dignitates".
Nevertheless,
the connection between mathematical first principles and legal
"principia"
or
"max-
imi
'
is quite clear, e.g., in Fortescue.
Winter,
1987]
ANCIENT
LEGAL
MAXIMS
as for the
principia,
which the Commentator calls the efficient causes, these are no
other than certain
universalia,
which the learned in the law, as well as mathematics,
4
call maxims.
Unfortunately, Fortescue does not give any examples of a legal
maxim and we cannot be sure whether he used the term to refer to our
"little sayings" or to more general first principles of law or ethics. It is
odd, and unsatisfactory, that he does not. He has used the word maxim, a
common term for a legal epigram. He ought then to comment on the
ordinary usage, and distinguish it from his own if that is his intent. But
Fortescue may have been wise in his vagueness. Granted that the rules of
law derive from and depend on general maxims, it is quite another and a
more difficult thing to determine precisely what the maxims are as
opposed to what they say. There are in fact a number of difficult
questions, of a philosophical nature, concerning the nature of maxims,
their function in legal logic and their justification, which need to be
considered. These questions will be taken up later after reviewing
modern human rights jurisprudence.
HUMAN RIGHTS THEORIES OF LAW
The disappearance of maxim jurisprudence, if it be a crime, has
been laid at the door of John Austin
5
and his mentor, Jeremy Bentham.
Certainly the decline of maxims coincides with the rise of so-called "legal
positivism". But rather than blaming the appearance of a new species for
the disappearance of the maxims we ought probably to attribute the
catastrophe (if catastrophe it was) to a change in the climate of thought.
The world of medieval philosophy generally was being swept away in
England; and new empirical ideas, thought to be more consonant with a
scientific attitude to things, were being developed. As scholars generally,
and scientists in particular, were emphasising facts rather than concepts,
it would be only natural for legal scholars to look at particular proposi-
tions in legal texts and opinions rather than general principles. Fortu-
nately we do not need, for present purposes, to answer such difficult
historical questions, for we are not trying to decide why the maxims
disappeared but whether they are really gone. They did not, in fact, ever
disappear completely and the values that they embodied continued to
feature in legal argument. Strict legal positivist theory, in the sense of
rules without guiding principles, is a very difficult thing to apply in
practice. It is not surprising then, that the notion of justice and a variety
of moral principles continued to be used to interpret both case-law and
statutes. In the United States of course such discussion was built into the
4
5
Sir John Fortescue,
Commendation of the Laws of England
(Trans Francis Grigor,
1917),
at
p
14:
"...
.you
may be deemed a lawyer in some competent degree, when, as a
learner, you shall become acquainted with the principles, causes and elements of the
law...
[T]hough a knowledge and practice of twenty years is but barely sufficient to
qualify as a judge, you will acquire a knowledge sufficient for one of your high quality
within the compass of one year.".
That Austin can properly be called a legal positivist is contested,
e.g.,
by
Robert
Moles. See "John Austin Reconsidered"
(1985) 36
NILQ
193ff.
302
NORTHERN IRELAND LEGAL QUARTERLY
[Vol. 38, No. 4
law (some would say fossilised) in the form of constitutional enactments.
So one way or another moral values continued to have a place in the law.
In recent decades, debates (and heated ones at that) concerning the
concept of justice and the place of moral principles in the law have been a
feature of jurisprudential writing. Everyone, it seems, wants to be known
as a human rights advocate. Professor Fuller and Professor Dworkin
have in turn attacked what they term "legal positivism" as epitomised in
the writings of Professor H. L. A. Hart, and insisted that moral
principles are an integral part of the law, not merely marks on an external
yardstick which determines whether positive law is good or bad. Pro-
fessor Hart, and those who have supported him, have in turn been
concerned to make it clear that their views do not compromise moral
principles, especially human rights. Even moral sceptics, as we shall see,
tend nowadays to be vociferous advocates of humane causes.
All this interest in, and support of, human rights can, as was said
earlier, be considered as a continuation of, and a resurgence of, the
emphasis on general moral values and humane principles that was a
feature of the maxim approach to law. But in certain respects these
writers are not the heirs of Fortescue, Noy, Bacon and Coke. They may
be the revived but they are not the authorised version. The classical
maxims were developed in the context of natural law theory which in
turn was seen against a larger background of philosophical and theologi-
cal ideas. Contemporary human rights theorists, in contrast, are nervous
about such basic theories and generally try to function without them.
Lacking any clear philosophical foundation their views have a floating
and insubstantial quality. Like clouds they are often beautiful and
appealing from a distance but somehow vague, shifting and confusing
when you get into them.
I have difficulty with the detailed vocabulary of modern "rights"
authors, for example, as to the worthwhileness of Professor Dworkin's
distinction between a principle and a policy.
6
But my greatest difficulty is
in deciding what each writer considers a human right to be and how one
would answer critics who deny that rights are anything other than our
own wishes and desires dressed up in a fancy vocabulary. It is common
for modern "rights" authors explicitly to dissociate themselves from
traditional natural law doctrines. But they do not as a rule go on to say
what they are substituting for natural law theory or how they would
modify it to make it acceptable. So moral principles and human rights are
left floating, not at sea which would at least be understandable, but like
Mohammed's coffin, between heaven and earth, which is miraculous.
The most recent entrants on the stage of human rights discussion are
radical critics of the law somewhat loosely lumped under the title of the
"critical studies movement". A number of such writers are quite explicit
that there is no rational basis for moral statements yet these same writers
6
See Dworkin,
Taking Rights Seriously
(1978),
22.

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