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Monday, August 18, 2014

Montana's Maxims of Jurisprudence

Earlier in the summer, I blogged about California's Maxims of Jurisprudence. As I discussed in that earlier post, California's maxims were an interesting collection of maxims of equity, canons of statutory interpretation, and other quizzical bits of advice.

I recently noticed that the Thurgood Marshall Law Library took note of my blog post and asked whether any other states have similar maxims. A quick check reveals that Montana and Guam appear to have similar lists of maxims. In this post, I will focus on Montana's maxims of jurisprudence.

Montana's legislature has a fairly approachable interface for searching the State Code. You can find Title 1, Chapter 3 of the Code here, which contains links to the purpose and text of Montana's maxims of jurisprudence.

Montana Code Annotated 1-3-101 notes that the "maxims of jurisprudence set forth in part 2 of this chapter are intended not to qualify any of the other provisions of this code but to aid in their just application."

As for the text of the maxims themselves, I have reproduced the entire list below. They are all contained in Montana Code Annotated Title 1, Chapter 3, Part 2:

1-3-201. Obsolete reason, obsolete rule. When the reason of a rule ceases, so should the rule itself.

1-3-202. Same reason, same rule. Where the reason is the same, the rule should be the same.

1-3-203. Change in purpose. A person may not change the person's purpose to the injury of another.

1-3-204. Waiver of benefit of law. Any person may waive the advantage of a law intended solely for that person's benefit. A law established for a public reason cannot be contravened by a private agreement.

1-3-205. Limit on rights. A person shall so use that person's own rights as not to infringe upon the rights of another.

1-3-206. Consent. A person who consents to an act is not wronged by it.

1-3-207. Acquiescence. Acquiescence in error takes away the right of objecting to it.

1-3-208. Own wrong -- no advantage. A person may not take advantage of the person's own wrong.

1-3-209. Fraudulent dispossession. A person who has fraudulently dispossessed oneself of a thing may be treated as if the person still had possession.

1-3-210. Acts on one's behalf. A person who can and does not forbid that which is done on that person's behalf is considered to have authorized it.

1-3-211. Acts of others. No one should suffer for the act of another.

1-3-212. Benefit -- burden. A person who takes the benefit shall bear the burden.

1-3-213. Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.

1-3-214. Wrong -- remedy. For every wrong there is a remedy.

1-3-215. Equal in right or wrong. Between those who are equally in the right or equally in the wrong, the law does not interpose.

1-3-216. Preference to earliest. Between rights otherwise equal, the earliest is preferred.

1-3-217. Beyond control. A person is not responsible for that which a person cannot control.

1-3-218. Vigilance. The law helps the vigilant before those who sleep on their rights.

1-3-219. Form and substance. The law respects form less than substance.

1-3-220. What ought to have been done. That which ought to have been done is to be regarded as done, in favor of a person to whom and against a person from whom performance is due.

1-3-221. Apparent nonexistence. That which does not appear to exist is to be regarded as if it did not exist.

1-3-222. Impossibilities. The law never requires impossibilities.

1-3-223. Idle acts. The law neither does nor requires idle acts.

1-3-224. Trifles. The law disregards trifles.

1-3-225. Particular versus general. Particular expressions qualify those which are general.

1-3-226. Preference for contemporaneity. Contemporaneous exposition is in general the best.

1-3-227. Smaller within larger. The greater contains the less.

1-3-228. Superfluity. Superfluity does not vitiate.

1-3-229. Certainty. That is certain which can be made certain.

1-3-230. Void act. Time does not confirm a void act.

1-3-231. Principal. The incident follows the principal and not the principal the incident.

1-3-232. Avoiding voidness. An interpretation which gives effect is preferred to one which makes void.

1-3-233. Reasonableness. Interpretation must be reasonable.

1-3-234. Third parties -- who suffers. When one of two innocent persons suffers by the act of a third, the person by whose negligence it happened must be the sufferer.
Like the California maxims of jurisprudence, the Montana maxims are a mixture of maxims of equity, canons of statutory construction, and other pieces of advice.

While there is considerable overlap between California's and Montana's maxims, I notice that some of California's most mysterious maxims ("3530. That which does not appear to exist is to be regarded as if it did not exist" ; "3547. A thing continues to exist as long as is usual with things of that nature") are not present in Montana's maxims. There is some overlap in mysterious maxims, however, on the "certainty" front, as Montana's quizzical 1-3-229 maxim ("That is certain which can be made certain.") is the same as California's maxim 3538.

Like the California maxims, Montana Code Annotated Title 1, Chapter 3, Part 1 precedes the text of the Montana maxims and notes that the maxims serve only to "aid the just application" of Montana's laws. A quick check of the notes of decisions, however, fails to uncover Montana case law as clear as that in California holding that the maxims of jurisprudence are of little use when the language of a statute is clear. 

Furthermore, it seems that some of Montana's maxims have been cited extensively. For intance, 1-3-281 -- the "vigilance" maxim -- has been frequently cited in cases that establish the existence of the defense of laches. In light of these frequent citation, and in the absence of strong case law disapproving of the maxims, it looks like Montana litigators who cite Montana's maxims may be taken a bit more seriously than California litigators who cite California's maxims.

These are just a few observations after my quick run-through of Montana's maxims of jurisprudence. Like the California maxims, Montana's maxims are an interesting insight into guiding principles for the interpretation and application of the law, and they can serve as a good starting point for those interested in learning more about canons of statutory construction and maxims of equity.

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