Selected Western Proverbs: Law, Rights, and Justice

Author: Sun Xiaoxia
Publisher:
Publishing Date: 2005-08-01
Features: Our impression of legal maxims (legal aphorisms or legal sayings) is that they are concise and implicit expressions of authority. It is said that scholars in Europe, America, and Japan all advocate the use of article-style maxims written in Latin, and legal works invariably quote Latin legal maxims. This may be because ancient maxims can enhance the credibility of their arguments. However, in fact, the meaning of legal maxims is far more than just that. Sometimes, maxims also imply a principle, an idea, a standard, or a method. For example, the well-known maxim "In cases of doubt, the judgment must favor the defendant" is a classic example of a Latin legal maxim. It succinctly expresses a legal principle that confuses judges and also provides judges with a legal method to resolve difficult issues. Of course, for most legal maxims derived from Latin, their interpretation and use require great caution. On the one hand, because they are highly condensed and succinct, even omitting certain parts; on the other hand, because propositions surrounding the law can lead to different interpretations in various complex situations. As a result, every proposition of a legal maxim must exhibit a certain obscurity. Therefore, we must supplement appropriate words while interpreting them cautiously. Examining the development of legal maxims, we can find that they are roughly divided into two schools: Anglo-American legal maxims and Continental legal maxims. The maxims cultivated in the soil of the Anglo-American legal system are far fewer in number than those of the civil law system. Continental maxims originated in the soil of ancient Roman law and later continued to exist in the civil law system represented by German and French law as a legacy of Roman legal knowledge and wisdom, remaining intact while also being impacted by changes in the times. Although they have changed in appearance and form, they still retain their inherent style. During the development of Roman law, legal maxims also evolved. In the 2nd century BC, they were manifested in the refinement of legal principles and rules. From the 1st to the 3rd centuries AD, the doctrines of Roman legal scholars were adopted by the state judiciary as guiding principles, and legal research became an important source of the development of legal maxims. During the Eastern Roman Empire, law and politics were relatively separated, and law underwent academic purification. As a result, legal maxims, as the essence of legal doctrines and knowledge, were continuously refined and developed under the background of comprehensive national legal education. The 6th-century Corpus Juris Civilis (especially the Digest, which forms its core), was a great product of law nurtured over eight centuries. Of course, the Eastern Roman Empire (known as the Byzantine Empire), which differed greatly from the Western Roman Empire in terms of ethnicity, culture, society, economy, and religion, inherited the long-standing Latin legal doctrines and propositions with a proverbial flavor intact, making it difficult to imagine (for example, in the Eastern Roman Empire where Greek was dominant, the number of people who could read Latin was very limited). However, these were naturally included as current regulations and, in essence, as monuments of brilliant classical law in legislative works such as the Digest. Most of the rich data of legal maxims we now possess also come from the Digest of this period. In European and American countries, legal maxims are not expressed in English, German, or French but are recorded in the foreign language of Latin. Although most legal maxims originated in ancient times, there are also relatively young maxims that emerged within about 200 years. For example, one modern maxim in the civil law system that expresses the principle of the rule of law is "No crime without a law, no punishment without a law." In the common law system centered on case law, legal maxims play a role similar to that of legal norms, and it is said, "In the absence of law, follow the legal maxim" (Regulaprolege, SIDEFICITLEXINDEFAULTOFTHELAWTHEMAXIMrules.). Due to various combined influences, legal maxims in Anglo-American legal system countries are treated equally to common law. In legal education, legal maxims are elaborated as axioms. In the world of the Anglo-American legal system, Latin legal maxims remain vibrant to this day. According to statistics from Japanese scholars specializing in Latin legal maxims, there are roughly 5,000 legal maxims recorded in Latin. Of course, some of these are merely propositions with rearranged word order or altered phrasing. We have only selected a portion of them here. Considering the current hot topics in legal research in China, we have selectively compiled ancient legal maxims related to key terms such as law, rights, justice, judges, and procedures in the context of China's rule of law construction, and named this collection of legal maxims "Law, Rights, and Justice – A Collection of Western Legal Maxims." The classification and arrangement are based on the following criteria: Under "The Nature of Law," we divide it into the characteristics of law, the relationship between law and justice, the relationship between law and reason, the relationship between law and custom, legal equity, and rules for handling legal conflicts. Under "Rights, Power, and Responsibility," we divide it into the authority of law, the relationship between law and rights, the relationship between rights and freedom, obligations and responsibility, and the relationship between law and power. Under "Judges and Justice," we divide it into the duties of judges, courts and trials, judicial principles, and legal interpretation. Under "Legal Procedure," we divide it into due process, procedural rules, and evidence rules. Under "Civil Justice," we divide it into general principles, protection of property rights, contracts and debts, agency and representation, damages, and marriage, family, and inheritance. Under "Criminal Justice," we divide it into crime and punishment. From these maxims, we can find the ancient basis of certain principles, rules, and maxims, thus gaining a deeper understanding of them. Taking the "Nature of Law" section as an example, it involves the stability and certainty of law (e.g., "Without a fixed law, there is no law"), the principle and flexibility of law (e.g., "Extreme precision is to be blamed in law"), the efficacy and precedent of law (e.g., "Law prescribes for the future, judges decide for the past"), the publicity of law (e.g., "Law has no effect without being published"), the generality and universality of law (e.g., "Law is designed for the general public, not for individuals"), law and natural order (e.g., "Law respects natural order"), the implementation of law (e.g., "It is easy to make law, but difficult to enforce it"), law and exceptions (e.g., "Exceptions are always considered last"), law and principles (e.g., "Principles do not need to be argued"), law and justice (e.g., "Law is the measure of justice"), law and reason (e.g., "Law is the command of reason"), legislative reasons (e.g., "The reason for the law is its soul"), law and emergency needs (e.g., "Emergency needs are higher than the law"), law and custom (e.g., "Custom is another kind of law?"), law and equity (e.g., "Equity does not create law, but assists it"), and legal conflict rules (e.g., "When two rights conflict, the longer-standing right prevails"). There are also some ancient maxims that, although not exclusively legal maxims, are closely related to law and our legal life, or have a close connection to our legal life. We have categorized them as "Others." Otherwise, these equally precious maxims would be left out of this system. These maxims or proverbs often share a common characteristic: they are common sense in life, in other words, they are not limited to the fields of law or legal studies. For example, the saying "Different trades are like different languages, but the principles are the same" illustrates the close connection between legal principles and common sense, as well as between law and life. Life is the mother of law. Some of the reference work in the compilation of this book was supported by Zhou Wei, a student in the 2002 Master of Laws program at Zhejiang University, in the translation of Japanese materials. We extend our gratitude to her here. 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