Remarks on the methodology of private law studies: The use of latin maxims as exemplified by nemo plus iuris

Abstract

Lawyers use words with great care and, particularly in public discourse, often like to use Latin dicta. They do so not only to make their arguments sound more sophisticated, but also to support their theses not merely with elegantly worded, classical maxims, but also with well tested, established concepts based on the experience of people who lived in ancient Rome, a consummately practical society, very well versed in the practice of law. A legal dictum formulated in Latin is referred to as a rule, maxim, definition, precept, or principle. It is impossible to differentiate these terms clearly, although this has been done for instance in the terminology used in contracts in continental private law. How can contemporary lawyers best use Latin maxims and sentences? This is explored by using the example of nemo plus iuris ad alium transferre potest, quam ipse haberet. The six steps are as follows: use maxims competently; be aware of the context of your quotation; do not allow yourself to be taken by surprise; make sure the maxim is well established in the law; do not neglect related and supporting maxims; and take the local context into account.