The hardest things to see are the things that are right in front of us. This maxim applies to things from lost car keys to dating your best friend. And it has a corollary in legal research: the most basic concepts in law are the hardest to locate authority for. You know that for every wrong there is a remedy, but where does it say that ?
A maxim is “a traditional legal principle that has been frozen into a concise expression.” Black’s Law Dictionary (Bryan A. Garner, ed., 9th ed., West 2009). Black’s points to a familiar example, caveat emptor, “let the buyer beware.” Legal maxims come from legal traditions– Jewish, Anglo-Saxon, Roman, French, Islamic.
The maxims of the law are a strange collection of general propositions drawn from all kinds of sources. They are taken from formal logic, medieval philosophy, the Bible and even from common experience. They cover virtually every aspect of the law; law in general, the judicial office, the relation of law to equity, the interpretation of documents, and the rights of kings and subjects. Every department of the law has a cluster of maxims associated with it. It has been commonly assumed that they represent basic legal principles (legal axioms) but this is by no means the case, as will become apparent later. Some of them are indeed general principles,some look more like particular rules, many of them can be viewed as both rule and principle and some fit into neither category.
J. Stanley McQuade, Ancient Legal Maxims and Modern Human Rights, 18 Campbell L. Rev. 75, 82-83 (1996). They may no longer be the guiding principles of law they once were, see id., but very often they are those basic principles we know but can’t find.
Here are a few others:
- For every wrong there is a remedy.
- The law respects form less than substance.
- The law disregards trifles.
- When the reason for a rule ceases, so should the rule itself.
We know them, we learned them in law school, but when we want to put them in a brief, we have to be able to cite them to somewhere. Fortunately, they have made their way into cases and codes, and secondary sources, sometimes in more modern forms. The Montana Code Annotated has a collection of legal maxims in title 1, chapter 3. The Notes of Decisions accompanying each maxim illustrate how traditional maxims are used in modern case law.
The U.S. Department of Justice compiled a 291 page collection of legal maxims gleaned from U.S. Supreme Court cases from 1993 through 1998. Many of these are not the traditional maxims, but they are the types of basic, familiar legal statements and definitions that researchers are often looking for. The statements are arranged by topic and cover areas of law from constitutional interpretation to tax.
Legal encyclopedias are another source for basic statements of law. They don’t have the status of primary law, but they have long been cited for basic principles and they are well footnoted to case law.
So where do you find the statement, “For every right there is a remedy”? Montana Code Annotated sec. 1-3-214.