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View Full Version : Why does the California Civil Code contain 'Maxims of Jurisprudence'? Does it?


Derleth
05-27-2009, 06:51 PM
It's like someone dumped a bunch of law school fortune cookies into the Code. (http://law.justia.com/california/codes/civ/3509-3548.html) Looking over them, I'm not convinced this is even for real. Some examples:3536. The greater contains the less.Truly a maxim for the ages.

3545. Private transactions are fair and regular.So... Vinnie the Loanshark's transactions are all private.

3546. Things happen according to the ordinary course of nature and the ordinary habits of life.I would also like to bring the blueness of the sky to the attention of this court.

3548. The law has been obeyed.OK... is that a maxim, a hope, or a completely unreasonable expectation?

3515. He who consents to an act is not wronged by it.I consent to a surgery and they remove the wrong lung. Was I not harmed?

3517. No one can take advantage of his own wrong.Does this mean it's impossible to turn lemons into lemonade, or that it's against the law to benefit from one's own crime?

Anyway, these little cracker maxims seem to have no purpose and are questionable in any case. Are they actually part of the Code or is this just a little hoax?

Bearflag70
05-27-2009, 06:55 PM
Those are real, but you left out a lot of gems. Here's my favorite:

3537. Superfluity does not vitiate.

Derleth
05-27-2009, 07:04 PM
Those are real, but you left out a lot of gems. Here's my favorite:

3537. Superfluity does not vitiate.I kind of figured that would make sense if I knew more than half of the words used.

I do have another:
3530. That which does not appear to exist is to be regarded as if it did not exist.It seems the religious would have something to say about this.

Kimmy_Gibbler
05-27-2009, 07:39 PM
Anyway, these little cracker maxims seem to have no purpose and are questionable in any case. Are they actually part of the Code or is this just a little hoax?

I have no reason to doubt the faithfulness of justia.com's reproduction of the Cal. Civil Code. I don't know the history of that body of law, but I seem to remember learning at some point in law school that many of the western states (the Montana Civil Code was the one my professor was familiar with) had adopted these codes in order to take advantage of the perceived benefits of the civil law model (as opposed to common law). The California Civil Code has, for instance, a section on the general principles of contract; something that looks a great deal more like the Code Napoléon than more typical American statutory codifications.

I don't believe the experiments ever amounted to very much. Even the thing that comes closest to a general American civil code, the Restatements of the Law published by the ALI, tend to be far less sententious than what you found. The Restatements have some small influence and are useful pedagogically in the classroom, but few lawyers would hang their hats on it in a brief, preferring, as we are a common law country, to find pertinent case law.

I would call these maxims a harmless curiosity save for the fact that your typical pro se dilettante loves this kind of stuff and marches into court spouting these oracular pronouncements as some sort of abracadabra. The debt concerning which the pro se litigant wrote a demand letter in the most turgid legalese you could imagine and which letter was never responded to? Well, Your Honor, "Acquiescence in error takes away the right of objecting to it!" It's not wrong, just facile and pointless; but you end up having to spend hours explaining to someone (http://boards.straightdope.com/sdmb/member.php?u=1307) that fortune cookie points and authorities don't really get you very far.

Bearflag70
05-27-2009, 07:40 PM
"Superfluity does not vitiate" means the addition of seemingly unnecessary, redundant, or superfluous words does not reduce the value of, impair, corrupt, invalidate, or vitiate, what is being said.

For example, if you had a contract for the purchase of a "striped zebra" the word "striped" is superfluous since all zebras are striped, creating a redundancy. You would not expect anyone to interpret the word "striped" to men "spotted" to just avoid the redundancy.

Adding redundant verbiage does not obligate anyone to construe something as meaning something it does not clearly mean in an effort to give distinct meaning to each word.

See, for example, the first sentence in this post. The addition of all those "redundant" terms to the sentence should not be interpreted to corrupt the basic point of the sentence, that superfluity does not vitiate.

JRDelirious
05-27-2009, 08:02 PM
Actually it would not surprise me at all to see these -- it's basically a formal, written-down list of either fundamental principles that courts should use when interpreting the law and making decisions, or reasonable presumptions that the persons bringing up a case should dispute. And even if the US runs mostly (save for Louisiana and my home Commonwealth) a Common Law system, hey once in a while it helps if some principle you would normally hold out of "common sense" is an actual part of the written Law.



So... Vinnie the Loanshark's transactions are all private. And it's up to the State, if in a criminal trial, or the plaintiff, if in a civil suit, to present to the Court evidence that these private transactions are NOT fair and regular.



However, yes, THIS does come across as a wee bit much, not even "real" Civil Law jurisdictions include a recitative of every last of the Fundamental Principles of the Law in the books, but we do incorporate stuff such as would come out of major jurisprudence, and clauses attending to more applied-law sorts of things, that we want to make sure will be followed uniformly such as "Words are to be understood as used in their usual and common meaning, save when specifically used as a technical term"; "When referring to persons in general, using the masculine gender in the language of the Law also includes the feminine"; etc. Heck, Article 2 of the PR Civil Code is the "ignorance of the law does not excuse from it" clause.



OK... is that a maxim, a hope, or a completely unreasonable expectation? OK, that one DOES sound a bit metaphysical. I'll take it the California framers meant that "the law has been obeyed"" is (a) the presumption that the prosecutor or the plaintiff has to dispute and (b) the goal at which you are to arrive.




I would also like to bring the blueness of the sky to the attention of this court. Ocassionally a plaintiff or defendant will try to argue something that came out of the Infinite Improbability Generator...

I consent to a surgery and they remove the wrong lung. Was I not harmed? You consented to removal of the diseased lung by a competent practitioner. You (or your estate) will present evidence that what was done was not what you consented to.

pan1
11-13-2009, 11:01 AM
I consent to a surgery and they remove the wrong lung. Was I not harmed?



Only if you consented to them removing the wrong lung. You consented to a surgery where they were to remove the left lung and they take out the right - that's not consent to what they did.

Nava
11-13-2009, 12:10 PM
I consent to a surgery and they remove the wrong lung. Was I not harmed??

You consented to have the "broken" lung removed; they removed the one that you had not consented to have removed. You had not consented to what got done to you. Sort of like the difference between "consenting to having sex" and "the other party hangs a video taken with a hidden camera in youporn."

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