Legal Maxims the chief of all in Jurisprudence, Justice (Retd.) G Rajasuriya delivers lecture at Madras HC

“…[the] maxim is the chief of all in the field of law, because it commands respect and all adhere to it. There is no question of… disbelieving the propositions. That is why in jurisprudence, it is considered the chief of all.”.Former Madras High Court judge Justice G Rajasuriya was referring to the Latin maxim, maxime ita dicta quia maxima est ejus dignitas et certissima auctoritas, atque quod maxime omnibus probetur, when he made the observation. On Thursday afternoon, the judge delivered a lecture on Legal Maxims at an event organised by the Madras Bar Association (MBA)..While introducing Justice Rajasuriya to the gathering, Advocate General and President of the MBA Vijay Narayan remarked that it was his strong knowledge of legal maxims that often served the judge in arriving at the right verdict. He said,.“There is a wealth of case law around these latin maxims, which capture the essence of every first principle that a lawyer can think of. And that is how he [Justice Rajasuriya] conducted his cases and always to the right conclusion because he was able to understand the first principles so well, since he had a very deep grasp of Latin maxims.”.On taking the stage, Justice Rajasuriya admitted that he could easily rattle off a number of Latin maxims, as he has done on earlier occasions, to show his prowess in the area. However, recounting a couplet by Alexander Pope, he admitted that he would prefer it if his talk did not end up resembling a needless Alexandrine “that like a wounded snake, drags its slow length along.”.To drive home the importance of legal maxims, Justice Rajasuriya took to informing the gathering of how maxims found their way into the Indian Evidence Act itself, albeit in translated form. This, despite author James Fitzjames Stephen’s recorded disdain for maxims. .Justice Rajasuriya cited the example of Section 134 of the Evidence Act, which indicates that it is not the number of witnesses, but the quality of testimony which should be considered. This follows the legal maxim, ‘testimonia ponderanda sunt non numeranda’ (testimony should be weighed, not counted)..The judge went on to note that, for all its criticism, legal maxims have practical utility as well. For instance, its timely use has the potential to bring about a temporary perplexity on the part of a judge, which may prompt him to deliberate on the case a little more than he otherwise would have..“You can very well argue without maxims. But, if you are not in a position to convince the judge in a weak case that you want to keep alive… then maxims will help you… When you do not have anything to say, then you can also rely on maxims.”.All the same, he went on to caution against using incomplete forms of legal maxims. He recalled an anecdote involving two lawyers, both of whom argued their cases against each other by citing ‘casus omissus’ (which translates to omission of law). What the lawyers failed to note is that there are two maxims involving the use of the phrase ‘casus omissus’..The first, Justice Rajasuriya informed, is ‘casus omissus pro omisso habendus est’, which means that what is omitted in the law is a deliberate omission; it should not be filled up. However, another casus omissus rule lays down the opposite. The maxim ‘casus omissus et oblivioni datus dispositioni communis juris relinquitur’ calls for common law to fill the lacunae or the omissions in enactments..During the course of his lecture, the judge also educated the crowd on the original versions of several commonly used maxims, including ‘quolibet homine presumitur quod sit bonus homo donec probetur in contrarium’, which is the basis for the principle that a person is presumed innocent until proven guilty in criminal cases..Other notable takeaways from the lecture also assumed particular significance in view of recent judgments of the Supreme Court. The legal maxims, ‘nullum crimen sine lege’ and ‘nulla poena sine lege’ brought to the fore the Supreme Court’s recent order on firecrackers. The maxim, the judge noted, basically lays down that,.“Unless there is a law, there is no question of violating the law. Unless there is a punishment prescribed under law, no question of punishing anyone.”.Justice Rajasuriya stressed that he was not commenting on whether the judgment is right or wrong, but merely pointing out the general legal aspect. The Supreme Court judgment is the law, he emphasised. .Maxims concerning custom and law were also discussed. On the on hand, the maxim ‘consuetudo loci est observanda’, calls for the law to respect authoritative customs. However, another maxim ‘malus usus est abolendus’ calls for the abolition of evil or harmful customs. Justice Rajasuriya observed that ideally, both principles must guide Parliamentarians. .A prominent part of his lecture was also devoted to the need to respect the law laid down by Courts. This point was illustrated by the maxim, ‘res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum’. This, the judge informed, means that,.“When the Court says white as black, black as white, curve as straight, straight as curve – that is final. Romans said it that way, They have put the Courts on the highest pedestal.”.It was noted that more often than not, people confine to simply using the term res judicata, without actually using the full maxim. .“Whether there can be a law student without knowing the term res judicata? But it is meaningless [by itself].”.The relevant maxim in this regard, the judge informed, was ‘res judicata pro veritate occipitur’ (a thing adjudged is taken as true). Another related maxim is ‘nemo debet bis vexari pro eadem causa’ (no person should be twice vexed for the same offence)..Given that Indian courts are courts of equity as well as courts of justice, Justice Rajasuriya also recommended the use of the maxim ‘tutius semper est errare in acquietando quim in puniendo, ex parte misericordiae, quim ex parte justitiae’. This maxim can be used while requesting courts to consider delivering their decisions keeping in mind the interest of mercy for the client. Translated, the maxim states that it is always better to err in acquitting than in punishing, on the side of mercy, than on the side of justice..On avoiding courtroom tantrums and cutting short litigation.Before the talk drew to a close (for want of time, rather than maxims to explain), Justice Rajasuriya also recalled several maxims touching upon the need to guard against judicial delays which could prejudice litigants. .These included ‘actus curiae neminem gravabit’ (the act of the Court shall prejudice no one) and ‘interest reipublicae ut sit finis litium’ (in the interest of society as a whole, litigation must come to an end). .He also recalled that it is the duty of a good judge to enlarge his jurisdiction (supplying legal maxims, if there is no law) rather than deny justice for a litigant. At the same time, another maxim calls for judges to render decisions so as to narrow the scope for more litigation..However, Justice Rajasuriya observed that the task of putting an end to litigation is easier said than done. Unless the person gets tired, a case is likely to be pursued endlessly. .In this regard, he also remarked that judges should have the moral courage to point it out if a particular case is weak. The judge went on to observe that such an exchange in ordinary courts would only prompt the advocate to demand the transfer of his case to another court, rather than persevere in persuading the judge..While this is not surprising in the course of ordinary litigation, the judge noted that there are several counsel who perform their duty to persuade the court of their case. .Commenting on such ideal courtroom conduct, Justice Rajasuriya remarked that several senior counsel, including AG Narayan, would say, “‘My lord, no doubt – As of now, my Lordship feels I do not have a good case. But I am sure my lord, after hearing my argument, you will say in my favour that I am having a good case.’”.“That should be the argument of a good lawyer”, observed Justice Rajasuriya. .In a lighter vein, he remarked there may be others who would throw tantrums in open court and walk out, threatening the judge of transfer petitions and letters to the Chief Justice..Finally, it was noted that the law itself provides for offshoot litigation at the present, making it difficult for judges to clamp down on prolonged litigation..The lecture concluded with a vote of thanks rendered by Secretary of the MBA, VR Kamalanathan.