latin maxims notes

8/12/2019 Latin Maxims Notes

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Interpretation/Construction

Formal interpretation (Interpreting the material generally)

1. Judicial construction/interpretation

1- Legis Interpretatio: Judicial construction of a statute acquires force of law

5a- Stare decisis/ est non quieta movere:Follow past precedents and do not disturb

what has been settled.

Judicial decisions interpreting a law is law, it sets precedent

2. Contemporary construction

2a- Contemporanee expositio/ est optima et fortissima in lege:Contemporary

construction is strongest in law

Contemporary construction are practical constructions that are place upon statutes,

at the time of or after their enactment, by the executive, legislative and judicialauthorities

Extrinsic aid to interpret the law.

3. Statute itself

36a- Opitma statuti interpretatrix est/ ipsum statutum: The best interpreter of the statute is

the statute itself4. As a whole

36b: The exposition of a statute should be made from all its parts combined

36c: It is unjust to decide or to respond as to any particular apart of a law without

examining the whole of the law

36d: The sense and meaning of the law is collected by viewing all the parts together as

one whole and not of one part by itself.

5. Presumption of constitutionality37- Interpretatio fienda est/ ut res magis valeat quam pereat: Law should be interpreted

with a view of upholding rather than destroying.

6. Harmony with other Statutes

38a: Of the same matter

38b-Interpretare et concodrdare/ leges legibus/ est optimus:Every statute must be so

construed andharmonised with other statutesas to have a uniform system of law

39a- Distingue tempora/ et concordabis jura: Distinguish times and you will harmonize

law

Law harmonizes with others laws and the passage of time

7. Strict compliance

43- Strictissimi juris:Follow the lawstrictly8. Prospectivity

46a-Lex prospicit, non respicit: Law looks forward, not backward.

46b: Law provides for the future not the past

46c: New statute should affect the future, not the past

46d: Laws which are retrospective are rarely and cautiously received for (Janus?) has really

no place in the laws

46e: Laws should be construed as prospective, not retrospective, unless they are expressly


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made applicable to past transactions and to such are still pending

9. Retroactivity

46e: Laws should be construed as prospective, not retrospective, unless they are expressly

made applicable to past transactions and to such are still pending

48:Penal laws which are favourable to the accused are given retroactive effect (Alsoapplicable to non-penal laws)

10. Repeals

49- Leges posteriores/ priores contrarias abrogant: Later statutes repeal prior ones

which are repugnant thereto

50- Generalia/ specialibus/ non derogant: A general law does not nullify a specific or

special law.

11. Riders

D:The black (body of the act printed in black) should never go beyond the red (title or

rubric of the statute printed in red)

No riders, apply Consti rule

Intrinsic Interpretation (Interpreting the material itself)

1. Intent: Verba/ Words

6a- Index animi/ sermo est:Speechis the index of intention

6c-Verba legis/ non est recedendum: Do no depart from thewordsof the statute

6d: It is bad construction which corrupts the text

6e- Literra scripta/ manet: Thewritten word endures

7a- Absoluta sentencia/ espositore/ non indiget: When the language of the law is clearno explanation is needed.

2. Intent: Ratio/Reason

6b- Animus hominis/ est anima scripti: The intention of the man is thesoul of what is

written

9a- Ratio legis/ est anima legis: Thereason of the law is the soul of the lawReason of the law prevails over the words

9b: Letter killsbut the spirit gives life

9c: Words need to be more subservient to the intentand not to the words

9d: Law is to be construed liberally so that its spirit and reason be preserved

9e: He who considers merely the letter of an instrument goes but skin deep into its

meaning

10: When the reason of the law ceases, the law itself ceases

3. General

9f: When the words used in a statute are special, but the purpose is general, it should be

read as the general expression

24a- Generalia verba/ sunt generaliter intelligenda: General words should be understood

in their general sense

24b: General statement is understood in its general sense

25d- Verba generalia/ restinguntur/ ad habilitatem rei ve; personam: General words

should be confinedaccording to the subject matter or persons to which they relate

35- Exceptio/ firmat regulam/ in casibus non exceptis: A thing not being expectedmust

be regarded as coming within the general purview of the general rule4. Context


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25a- Verba/ accipienda sunt/ secundum subjectam materiam: A word is to be understood

in the context in which it is used

26- Ubi lex non distinguit/ necnon/ distinugere debemus: Where the law does not

distinguish, the courts should not distinguish.

27-

Dissimilium/ dissimilis est ratio: Of things dissimilar, the rule is dissimilar28- Nonscitur/ a socilis: A thing is known by its associates (Immediate context)

29- Ejusdem generis:Of the same kind or species(When a specific word precedes the

general word, such general word should be of the same kind or specie as the specific

words enumerated.)

5. Common sense

25b:Equivocal wordsor those withdouble meaningare to be understood according to

their common and ordinary sense6. Technical sense

25c: Words of art should be explained from their usage in the art to which they belong

7. Implications

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20a- Ex necessitate legis: By necessary implicationof law

20b: Greater includes the lesser

20c: When jurisdiction is given, all powers and means essential to its exercise are also

given

30a- Expression unius/ est exlcusio alterius: Express mentionon one person, thing or

consequenceimplies the exclusion of others8. Expressed vs Implied

30b: What is expressed puts an end to that which is implied

31- Argumentum a contrario: Negative-opposite: What is expressed puts an end to that

which is implied.

32: A person, object or thing omitted from an enumeration must be held to have beenomitted intentionally

9. Proper references

33: Qulifying word or phrase should be understood as referring to the nearest antecedent

34:Referring to each of referring each phrase or expression to its appropriate object, or let

each be put in its proper place

36e: A passage will be best interpreted by reference to that which precedes and follows it

36f: Reference should be made to a subsequent section in order to explain a previous

clause of which the meaning is doubtful

10. Errors/ Uncertainty

16a: False description does not preclude construction nor vitiate the meaning of the

statute

16b: Error in name does not make an instrument inoperative when the description issufficiently clear

16c: That is sufficiently certain which can be made certain

Practical interpretation (When obscurity arises and formal/intrinsic interpretation is

not clear)


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1. Standard practice

B1- In obscuris/ inspici solere quod verisimilius est,/ aut quod plerumque fieri solet:When

matters are obscure, it is customary to take what appears to be more likely or what

usually often happens

B2- Ambiguitas verborum patens/ nulla verificatione excluditur: A patent ambiguity can becleared up by extrinsic evidence (unless perfectly vague).

Go outside and consult outside the law or statutes, check what practice or how it is

carried out

C1: Laws are understood to be adapted to those cases which most frequently occur.

C2: Laws ought to be made with a view to those cases which happen most frequently and

not those which are of rare of accidental occurrence

2. Custom

2b- Optima set legume interpres/ consuetudo: Custom is the best interpreter of law

3. Usage

3a-Optimus interpres rerum/ usus:The best interpreter of the law is usage4. Harsh laws still need to be obeyed

7b: Dura lex/ sed lex: The law may be harshbut it is the law7c: It isexceedingly hard, but so is the law written

5. Equity

8a: Equity never acts in contravention of the law

8b: What is good and equal is the law of laws

8c: Law is the art of good and equitable

6. Avoid inconvenience and absurdity

11a-Interpretatio talis/ in ambiguis/ semper fienda est/ ut evitetur inconveniens/ et

absurdum: When there is ambiguity, the interpretation of such that will avoid

inconvenience and absurdity is adopted'

11d: It is better that words should haveno operation at allthan they should operate

absurdly

7. Should be reasonable/ interpreted with reason11e: Law always intends that which is in accordance with reason

11f: When there is the same reason, there is the same law

8. Analogy

11f: When there is the same reason, there is the same law

11g: An argument drawn from a similar case or analogy prevails in law

11h: Concerning similars, the judgment is the same

11i: Where the reason is the same, there is the same verdict of law

9. Free from injustice

11b- Legis construcio/ non facit injuriam: The construction of the law will not be as such as

to work injury or injustice.

12a- Ea est accipienda interpretatio quae vitio caret: The interpretation is to be adopted

which isfree from injustice12b Lex injusta non/ est lex:Unjust law is not law

10. What is right

13a: Let right be done thought he heavens may fall

11. No to extremes

18a:The rigor of law would be the highest injustice

18b:Extreme law is often extreme wrong


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12. Impossibility

19a- Nemo/ tentetur ad impossibilia: The law obliges no one to perform an

impossibility.

19b: No obligation to do an impossible thing

19c:Law does not require an impossibility19d:Law does not intend the impossible

13. Harmony and change

38a: Of the same matter

38b-Interpretare et concodrdare/ leges legibus/ est optimus:Every statute must be so

construed andharmonised with other statutesas to have a uniform system of law

39a- Distingue tempora/ et concordabis jura: Distinguish times and you will harmonise

law

Law harmonizes with others laws and the passage of time

39b:Times have changed and the laws have changed with them

39c:With the necessary changes

14. General welfare

40a- Salus popili/ est suprema lex: Thewelfare of the people is the supreme law40b- Statuta/ pro publico commdo/ late intepretantur: Statutes enacted for the public

good are to be construed liberally

40c: Private interests of the individual must give way to the accommodation of the public

Other rules to follow

1. Use of Maxims

2c- In default of law the maxim rules

2. Void cannot become valid

3c: That which was originally void, does not become valid

3. Legislative4: Legislative ratification is equivalent to mandate

4. There should be an end to litigation

5b: The interest of the state demands that there be an end to litigation

5. No one above the law13b: Nobody is above the law

13c: No power must be above the law

6. Unjust enrichment is unjust

14: It is certainly not agreeable to natural justice that a stranger should reap the pecuniary

produce of another's work

7. Exemptions

17: Where anything is granted generally, exemption from rigid application of law is

implied: that nothing shall be contrary to law8. Rights

21a: When there is a right, there is a remedy for the violationhereof

21b: When the law is uncertain there is no right9. No relief when it fault

22a: An action does not arise from fraud

22b: No one may derive advantage from his own unlawful act


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22c: Pari delicto: Where the parties are equally at fault, the position of the defending party

is the better one

10. No direct way, no indirect way also23: What cannot by law be done directly, cannot be done indirectly

11. Criminal law41a: Act does not make a person guilty unless his mind is guilty

41b: Act done by me against my will is not my act

12. Privileges

42a: Privileges are to be interpreted in accordance with thewill of him who grants them42b: Renunciation cannot be presumed

13. No legal right against authority

44: There can be no legal right as against the authority that makes the lawon which the

right depends

14. Those who the law favours

40c: Private interests of the individual must give way to the accommodation of the public

45a: Lawaids the vigilant, not those who slumber on their rights

45b:He who isfirst in timeis preferred in right15. Ignorance of the law

A: Ignorance of the law excuses no one

16. Not importance enough to be given consideration

C3:Legislators usually pass over what happensonly once or twice

C4:Law does not concern itself with trifling matters

Clarence Tiu, Ateneo Law 1-B, Statutory Construction

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