Burn the Deadwood: Maxims in Black’s Law Dictionary
by Ken Bresler
Massachusetts Lawyers Weekly, February 8, 2018
Detroit Legal News, February 14, 2018
Rhode Island Lawyers Weekly, February 15, 2018
Michigan Lawyers Weekly, March 13, 2018
If you have the same idea as I had, I’ll save you time and tell you that it didn’t work. My idea? Use the “Legal Maxims” appendix in Black’s Law Dictionary, not to look up Latin that I come across in readings and pleadings, but to use the maxims proactively, in my writing, to bolster my points.
Until the 10th edition of Black’s was published in 2014, legal maxims appeared in the body of the legal dictionary, distributed alphabetically throughout the definitions. In the 10th edition, the maxims were collected in Appendix B, according to an introduction to the appendix, “for ease of reference.”
If “for ease of reference,” Black’s means that it is easier to look up a maxim when maxims are collected in one place, that is so. However, the maxims are arranged alphabetically, not by subject. If you’re interested in knowing maxims about, say, contracts, you have to know that “pactum” is Latin for “agreement” and that “pacta” is the plural. And you can look up only maxims that begin with “pactum” and “pacta,” not ones where the words appear in the middle. Being interested in maxims about contracts is not a hypothetical example. I’ll tell you more soon.
In the absence of categories or an index, I read all 71½ pages of the legal maxims, roughly 3,200 maxims. This is what I can report.
Some maxims are contradictory. This probably won’t surprise you, because they come from different eras and jurisdictions. I’ll spare you the Latin, but here are two maxims: “A common error (one often repeated) makes law.” “A common error does not make law.” The maxims are sequential and Black’s acknowledges that they’re contradictory.
Here are two other sequential maxims (again, sparing you the Latin): “A fiction of law injures no one.” “Fiction of law works unjustly if it works loss or injury to anyone.” Black’s does not acknowledge that these maxims conflict.
Some maxims are for foreign legal systems. For example: “In England there is no interregnum.” Just about every maxim that starts with “rex,” Latin for “king,” is irrelevant to American law, including this one: “The king is a sacred person, and joined with the priesthood.”
The following maxim is not only for a foreign legal system, the foreign legal system no longer exists: “It is permissible to disinherit those whom it was lawful to kill (when the Roman paterfamilias had that power over his sons). Dig. 28.2.11 (mentioned as an invalid objection to treating children as filii fimilias).” It’s a maxim in Latin whose English explanation is partly in Latin. “Dig.” is a citation to The Digest of Justinian. A major drawback of the maxims is that almost every one of them lacks citations and therefore context.
By the way, almost all of the maxims are Latin, but I did spot two in French. One is “Droit ne poet pas morier. Right cannot die.”
Some maxims are hard to understand. Examples: “The cause of the thing causing is the cause of the effect.” “Dower ought not to be sought from dower.” “The reason of contrary things is contrary.”
Black’s explains obscure maxims occasionally, such as: “The crime brings with it the person. • That is, the commission of a crime gives the courts of the place where it is committed jurisdiction over the person of the offender.” But most maxims go unexplained.
If I ponder these opaque maxims long enough, I might be able to derive some meaning. But doesn’t the need to ponder defeat the purpose of a maxim? Isn’t a maxim supposed to provide pithy wisdom and evoke an “Aha!” from us?
In the category of hard-to-understand and obscure maxims, I’ll leave you with “Pannagium est pastus porcurum, in nemoribus et in silvis, de glandibus, etc. A pannagium is a pasture of hogs, in woods and forests, upon acorns, and so forth.” As Justice Antonin Scalia once wrote, “What say?” Obergefell v. Hodges, 135 S. Ct. 2584, 2630 (2015) (Scalia, J. dissenting.)
I thought that if I read all the maxims, page by page, and found and marked some that I could use, it would do two things for me. I could cite the maxims as authority in my cases. And searching for them in legal databases would lead me to cases that I could cite as precedents.
I had one case, my own claim in which I represented myself, involving unusual and explicit contract provisions. I was trying to prove that the existence of the provisions indicated one party’s consistent course of conduct – that the provisions were inserted to rein in that misconduct, that the provisions were not gratuitous. I came across only one maxim in Black’s that might help: “Clausulae inconsuetae semper inducunt supsicionem. Unusual clauses always arouse suspicion.”
When I searched in a legal database for the maxim, in Latin, for an excerpt of the Latin, and in English, I retrieved only four nineteenth-century cases, including one from the Orphans’ Court of Pennsylvania, Philadelphia County. A search of law review articles retrieved antiquated texts and old legal dictionaries. In other words, the maxim didn’t help me.
In the same case, a judge, after hearing extensive evidence, denied a significant claim, the one under the contract, with a 10-word sentence, asserting that evidence was lacking. I appealed. In my 15-minute oral argument before an appellate court, a judge spent five minutes questioning me why I had not moved to recuse the trial judge for being biased against the claim.
When the appellate court remanded the case because the trial judge’s explanation for denying my claim had been deficient, I moved to recuse the judge. I didn’t want to have to appear in front of the appellate court again and have to explain why I had not acted on its pointed suggestion.
The trial judge refused to recuse himself, held a second trial, heard extensive evidence about the claim again, and denied it again, this time in zero words; he ignored it and ruled on other claims.
I appealed again. In my brief (which I never filed, because the parties settled the case), I wanted to use a legal maxim that I had found in Black’s: “Cessa regnare, si non vis judicare. Cease to reign, if you wish not to adjudicate.” However, no case cites this maxim, according to my search of a legal database. The only citations to this maxim I found were in older legal dictionaries. In other words, this maxim also didn’t help me.
The brief that I almost completed and filed read in part:
CONCLUSION
For the foregoing reasons and because the judge has declined to recuse himself and
has made it clear that he will not adjudicate the [complaint], see Black’s Law Dictionary
1903 (10th ed. 2014)(“Cessa regnare, si non vis judicare/Cease to reign, if you wish not
to adjudicate”), the Court should remand the…complaint… with an order that another
judge adjudicate it;…
I didn’t cite the maxim in the body of the brief, but rather, in passing in the conclusion. I admit that this would have been a weak use of the maxim, but the maxim was weak authority for my proposition. My authority was an admonition toga’d up in Latin, whose original pre-Black’s sources were unknown.
A maxim that appears only in legal dictionaries and not in cases is like a word that appears in dictionaries but that no one uses. Really, what’s the point? You’re unlikely to come across such a maxim in your reading. (If you do, you can search online for its meaning.) And you’re unlikely to be able to use such a maxim in your writing.
Black’s posits, “Regula pro lege, si deficit lex. If the law is inadequate, the maxim serves in its place.” This maxim is inadequate, because it isn’t true.
Black’s implicitly acknowledges the limited usefulness of its list of legal maxims in three ways. I suspect that the purpose of moving the maxims to Appendix B was to clear the working dictionary of deadwood. But then why not burn the deadwood?
One maxim (“A year begun is held as completed”) is “[s]aid to be of very limited application.” Said by whom? Black’s doesn’t say. Can’t that be said of most of the maxims? Finally, the introduction to the maxims states in part:
[T]here is an element of fun in legal maxims: they sometimes express surprising insights – and these from ancient writers. Though they will not clinch arguments, they will delight many readers who have a historical bent.
Ancient writers? For the most part, we don’t know who they are. Readers with a historical bent? Lawyers and readers of history generally want citations.
Black’s has uncluttered itself by moving maxims into an appendix. Maybe in the next edition, it will quietly leave out the appendix.
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Addendum to article, 2019: The 11th edition of Black’s Law Dictionary has appeared – and it contains the legal maxims. The publisher proudly announced that it has added 900 maxims. To its credit, Black’s does now include an index to the maxims, but the index has only 37 categories.