1

DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, AP., INDIA.

PROJECT TITLE

‘LEGAL MAXIMS: CONSUETUDO PRO LEGE SERVATUR, EX INJURIA JUS-

………………………….NON ORITUR, MALUM IN SE’

SUBJECT

LEGAL WRITING

NAME OF THE FACULTY

DR. K ARUNA

NAME OF THE CANDIDATE: JAHNAVI GOPALUNI

ROLL NO. 2020LLB035

SEMESTER II
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CERTIFICATE
Title of the subject: Legal writing
Name of the faculty: Dr. K Aruna

I, Jahnavi Gopaluni, hereby declare that this project titled “LEGAL MAXIMS” is submitted by me is
an original work undertaken by me. I have duly acknowledged all the sources from which the ideas have
been taken. To the best of my knowledge, the projects free from any plagiarism issue.

Name: Jahnavi Gopaluni

Roll No. 20LLB035

Semester II

ACKNOLEDGEMENT
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I would like to sincerely convey my heartfelt appreciation to our respected Legal writing professor, Dr. K
Aruna Ma’am for giving me a great opportunity to make my project and for providing me with the
guidance to finish the project successfully.

I would also like to thank my classmates for giving their valuable insights and for co-operation.

I have attempted to collect information and compiled it here to the best of my knowledge.
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TABLE OF CONTENTS
CONTENTS Pg. No

1. ABSTRACT 5

2. SYNOPSIS 6-8

3. INTRODUCTION 8-9

4. EX INJURIA JUS NON ORITUR 9-12

5. MALUM IN SE 12-14

6. CONSUETUDO PRO LEGE SURVETUR 14-16

7. CONCLUSION 16

8. BIBLIOGRAPHY 17
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ABSTRACT
A legal maxim is basically a principle of law that is generally in the form of Latin language.
The origin of legal maxims can be dated back to medieval period of Europe. Latin was
common language of Europe at that time. Each legal maxim comes from some historic
judicial precedent. Legal maxim is a short expression of a fundamental legal concept.
Maxims denote principles of natural justice which are accepted by every legal system. These
legal maxims have become a part of every legal discourse and judicial proceedings.

The significance of legal maxims is that it is useful in avoiding the usage of long definitions
and explanations. The small term can express a legal theory behind it. Furthermore, usage of
legal maxims increases the soundness of judgements, graces the arguments and makes it look
substantial.

In this project, the researcher discusses three such Latin legal maxims namely EX INJURIA
JUS NON ORITUR, MALUM IN SE and CONSUETUDO PRO LEGE SERVATUR which
have been frequently quoted in various case laws. The project attempts to explain the
meaning of the Latin maxims, their origin, significance and the fundamental legal principle
behind them by giving the examples of some case laws where they’ve been used.
 6

SYNOPSIS

OBJECTIVES OF THE STUDY:

Present study aims to:

1. Understand the meaning and fundamental legal principle behind the three above
stated legal maxims;
2. examine the case laws in which the principles of legal maxims have been applied.

SCOPE OF THE STUDY:

The study would be limited to elucidation of the three legal maxims namely ex injuria jus non
oritur, malum in se and consuetudo pro lege servatur.

SIGNIFIANCE OF THE STUDY:

The researcher attempted to examine the three legal maxims by giving case laws in which
those rules were applied as examples. This helps one understand the concept behind the
maxims in clear and clarified manner.

RESEARCH QUESTION

1. Whether the usage of legal maxims is having any drawbacks?

LITERATURE REVIEW

‘Incorporation of the maxims in Indian law and their importance’ - This article has been
authored by Sushmita Choudhary, It is a detailed article which talks about the meaning,
origin, significance, drawbacks and usages of maxims in the legal sphere. The article broadly
introduces the meaning and origin of legal maxims and takes some frequently used legal
maxims as an example. The author attempted to include case laws in which the maxims were
applied. This helped the researcher of the present study to get an over view of the topics and
understand the significance and drawbacks in usage of legal maxims.
 7

RESEARCH DESIGN/ CHAPTERIZATION:

Chapter 1: Gives the introduction to legal maxims and their significance.

Chapter 2: Explains the maxim EX INJURIA JUS NON ORITUR with taking example of the
case in which the rule was applied.

Chapter 3: Explains the maxim MALUM IN SE with taking example of the case in which the
rule was applied.

Chapter 4: Explains the maxim CONSUETUDO PRO LEGE SERVATUR with taking
example of the case in which the rule was applied.

Chapter 5: The study is concluded with brief summary of the present project with final note.

RESEARCH METHODOLOGY

This study is based on the Doctrinal Method of research

TYPE OF RESEARCH

This research is critical and explanatory.

SOURCES REFFERED TO:

Primary Sources:

1. https://www.scconline.com/
2. https://www.westlawasia.com
3. http://www.manupatrafast.in/

Secondary sources:

4. www.indiankanoon.org
5. https://blog.ipleaders.in/
6. https://www.legalbites.in/
7. https://bnblegal.com/
 8

MODE OF CITATION

The researcher has employed Oxford University Standard for the Citation of Legal
Authorities (OSCOLA), Fourth Edition.

INTRODUCTION

Legal maxim is a short form or a abbreviated expression of any basic rule or fundamental
principle in law. We use it in a single word or phrase to avoid using lengthy meanings and
definitions of any legal principle. 1 For example, take a maxim ‘Mens rea’ which means ‘the
mental element in a person’s intention to commit a crime’. This element is necessary to be
proved in almost all criminal cases. So, instead of saying ‘there is a presence of a mental
element or malicious intent in the mind of accused to commit crime’ we can simply say ‘there
is a presence of mens rea’. This is enough helpful in practical situations.

“The term Maxim is the Latin derivation of ‘axioma’ which means the first principle, for
instance, geometry. Axioms being first principles self-evident in nature. all the subsidiary
prepositions could be deduced from them but they themselves were underived. They held
their own authority. so, a legal Maxim Would be a self-evident first principle without any
contradiction.”2

Sir James Stephen, a British lawyer, judge and writer said, “It seems to me that legal maxims,
in general, are little more than pert headings of chapters. They are rather minims than
maxims, for they give not a particularly great but a particularly small amount of information.
As often as not, the exceptions and disqualifications to them are more important than the so-
called rules”. 3

Originally, In the past, the legal code was structured and formed by the Romans who had
used their religious intuitions and natural principles to describe the rules. Since Rome had
dominion over most European countries and the Middle East, the successor regimes used
existing Roman laws until the Roman Empire collapsed. All of the laws of common law

1
Sushmita Chaudhary, ‘Incorporation of the maxims in Indian law and their importance’ (iPleaders,
23 February 2021) <https://blog.ipleaders.in/incorporation-maxims-indian-laws-importance/>
Accessed 15 April 2021.
2
Ibid.
3
Ibid.
 9
countries form the basis of these Roman laws. Any non-Roman was regarded was regarded as
unworkable and they based their legal principles in Latin, which is the root of the current
legal system containing in Latin words. Judicial maxims in today's world are Latin terms that
have developed in the Roman empire times, slowly they became transferred from the
judgments taken at that period, making it an important part of the juridical structure today.
The Common Law uses these Latin words, commonly in an abbreviated form of various legal
principles.

These words were passed down by generations of judges, their meanings were used in
different contexts in different judgements delivered over the time.4

Presently, in various court cases and other fields, there are several different legal maxims
used on a daily basis. We may also see that a legal maxim clarifies a legal premise, proposal
or definition. There are hundreds of such traditional legal maxims. We shall discuss three
such important legal maxims that are frequently used in judicial proceedings.

EX INJURIA JUS NON ORITUR

MEANING:

“Cause of action cannot arise from illegal acts”

EXPLANATION:

Ex injuria jus non oritur means "Action cannot arise from illegal acts" and is a Latin
sentence. In other words, an illegal act or action does not give rise to a privilege or right. This
means that wrongdoing can't give claim to a right. If the facts on which the case is based
itself arise from fraud or other criminal or illegal actions or omissions then regardless of how
unjust in nature, cannot constitute the foundation legal rights.

It is mainly used in theory of International law, that an act of aggression (on other territories)
is illegal. Due to its inherent illegal nature, no legitimate legal right can be claimed by the
aggressor on the occupied land.
4
Swati, ‘Common knowledge of legal abbreviations and legal maxims’ (Mysteno, 24 January 2019)
<https://mysteno.io/blog/knowledge-legal-abbreviations-legal-maxims/> Accessed on 15 April 2021.
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USAGE IN CASE LAWS:

This legal maxim was applied recently in Kulbhushan Jadav's case during the international
court of justice hearing.

INDIA v. PAKISTAN (Jadhav case), 2017. 5

FACTS OF THE CASE:

In 2017, India lodged an Application in International court of justice against Pakistan in the

conflict relating to alleged breaches of the 1963 Vienna Convention on Consular Relations
with regard to the imprisonment and conviction of an Indian national, Mr. Kulbhushan Sudhir
Jadhav, sentenced to death in April 2017 by the military court in Pakistan. Pakistan has
alleged that Jadhav is serving Indian naval officer who is planted as a spy and was engaged in
spying and terrorist activities, especially in the province of Balochistan.6  India applied in the
ICJ in the background of the detention by Pakistan and contended that a hasty trial was
conducted and a penalty of death was given without consular access being provided to Indian
national by violating the 1963 Vienna Convention. India asked the ICJ to stay with the
implementation of sentence. India alleged that the arrest and imprisonment of its national had
been refused to be informed by Pakistan immediately.

India also alleged that, while Mr. Jadhav was in custody he had been unable to speak with his
legal counsel and had not been told about his rights pursuant to Article 36 of the Vienna
Convention on Consular Relations and the Indian consular officers were refused access to
Mr. Jadhav. India requested the ICJ to issue Pakistan a directive to annul the death penalty of
Jadhav and announce that his military tribunal is in breach of the Vienna Convention and a
directive to free him.

USAGE OF THE MAXIM:

In the International Court of Justice, Pakistan presented a counter memorial against the

arguments of India. Pakistan said that India's request was grounded in the supposed illegal
behaviour of India. It is an unlawful act to plant spies and encourage terrorist activities in
5
India v. Pakistan (Jadhav case), 2017.
6
Pravin Swamy, ‘Kulbhushan Jadhav case at ICJ: A brief overview of India's position in The Hague
and Pakistan's likely response’ First Post (18 February 2018)
<https://www.firstpost.com/india/kulbhushan-jadhav-case-at-icj-a-brief-overview-of-indias-position-
in-the-hague-and-pakistans-likely-response-6106931.html> Accessed on 14 April 2021.
 11
other country and no legitimate argument arises from it. It Argued that case must therefore be
rejected relying on the principle of "ex injuria jus no oritur". However, the court refused to
focus on the premise of Pakistan's argument.7

JUDGEMENT: India pleaded that, without Jadhav having received legal counsel from
Pakistan, the Vienna Convention was breached. The ICJ accepted the argument. The Court
also said Pakistan should revisit and rethink Jadhav's arrest and sentencing, and he shall
be served by an official counsel of his choosing.8

RIYAJUDDIN AHMAD VS. STATE OF JHARKHAND (2014) 9

FACTS OF THE CASE:

The petitioner was appointed assistant teacher by Jharkhand Public Service Commissioner,
Ranchi. After the appointment, eight long years he continued in service. Meanwhile, the
respondent investigated behind his back and concluded that the teacher training certificate he
obtained was fraudulent and forged. Respondent received the information from Bihar School
Examination Board, Patna, details under RTI. He was terminated from the job without any
departmental enquiry after eight years of service.

Learned counsel for the respondents contended that in the first page of the appointment letter
itself the chosen applicants had to submit an affidavit, stating that if their credentials were
found to be false, their appointments would also be terminated without any notice or show
cause.  The respondent claimed that he performed a systematic enquiry and the Teacher
Training Certificate of the complainant was found to be fraudulent.

JUDGEMENT: The court held: “The petitioner obtained appointment on the strength of a
certificate of Bihar School Examination Board relating to Teacher's training. The said
certificate was enquired into and verified by the respondents. The credentials were found to
be false. No benefit can be claimed on the basis of such an appointment procured. Placing
reliance on the legal maxim i.e., jus ex injuria non oritur, i.e., a person claims any right
arising out of his own wrongdoing, cannot be permitted to urge that their offence cannot be

7
https://www.outlookindia.com/newsscroll/icj-threw-out-3-objections-by-pakistan-to-admissibility-
of-indias-plea/1577354> Accessed on 15 April 2021.
8
International court of justice, ‘Jadav case’ (18 May 2017) <https://www.icj-cij.org/en/case/168>
Accessed on 15 April 2021.
9
Riyajuddin Ahmad vs. State of Jharkhand, MANU/JH/1236/2014.
 12
subjected to inquiry, trial or investigation or cannot claim any relief. The petitioner, therefore,
cannot insist that a proper departmental enquiry should have been conducted before his
services were terminated by the respondents. His appointment itself being based upon
certificate which was found to be forged and fabricated, therefore, no right could flow
therefrom to render him to continue in service for number of years.” The writ petition was
therefore dismissed.

MALUM IN SE

MEANING:

‘Evil in itself’

EXPLANATION:  According to Black's Law Dictionary the meaning of the phrase

“Malum in se” is as follows:

“A wrong in itself. An act is said to be “malum in se” when it is inherently and essentially

evil, that is, immoral in its nature and injurious in its consequences, without any regard to the
fact of its being noticed or punished by the Law of the State. Such are most or all of the
offences cognizable at Common Law (without the denouncement of a statute), as murder,
larceny etc.” 10

The term refers to behaviour, regardless of the rules regulating the behaviour, which is
considered sinful or intrinsically wrong by nature. That is different from malum prohibitum,
which is just incorrect since it is forbidden by law. For instance, most people think that
assassination, rape and theft are gravely wrong, irrespective of whether or not a statute
regulates such behaviour, and so it is recognisably malum in itself. Malum prohibitum
offences are, on the other hand, illegal, not because they are intrinsically evil, but because the
laws of the state prohibit the action. For example, following social distancing of two feet
distance has been made mandatory during pandemic. It doesn’t mean not maintaining
distance is immoral act. It is made a rule to prevent the disease from spreading in public.

10
Black’s Law dictionary (10th ed. 2014) 365.
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This definition was used to develop the different crimes of the common law. It can be said
that the "counter of natural law" in itself is malum and is thus prohibited by the Law of
natural Justice.

ILLUSTRATION:

“ For instance, killing someone is a different crime than violating a traffic rule. Though both
are technically against the law, these crimes still fall into two very distinct categories. The
first category constitutes of actions that are deemed evil because of the nature of the action
and are well recognized as crimes even if a person has not read the law. Such are crimes of
mala in se those which violate society’s view of morality. Often these are more serious
crimes, such as murders, which can result in a prison sentence.”

USAGE IN CASE LAW:

in Bachan Singh vs the State of Punjab, the Supreme Court held that “True of crimes
inherently vicious and pernicious, which under the English Common Law were classified as
crimes mala in se, as distinguished from crimes mala prohibita. Crimes that are mala in se
embrace acts immoral or wrong in themselves, such as murder, rape, arson, burglary, larceny
(robbery and dacoity) while crimes mala prohibita embrace things prohibited by statute as
infringing on others’ rights, though no moral turpitude attaches to such crimes. Such acts
constitute crimes only because they are so prohibited.”

This Case is a landmark judgment given by 5 judges Bench of the Hon’ble Supreme Court. In
this case Supreme Court announced important limitations on the death penalty by setting the
“rarest of the rare” doctrine. 

BACHAN SINGH VS THE STATE OF PUNJAB

FACTS OF THE CASE:

The Appellant Bachan Singh was convicted for committing his wife’s murder. He was
sentenced for life imprisonment. After having completed the imprisonment and getting
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released, he was living with his cousin brother Hukam Singh and his family. On a fateful
night, a family member Vidya Bai was awakened from sleep hearing loud cries for help. She
saw the appellant inflicting axe blow on her sister Beeran Bai’s face. While she attempted to
stop the appellant Vidya Bai was hit with axe leading to injuries on her face and ear making
her unconscious. Diwan Singh and Gulab Singh, on seeing an appellant with axe on Desa
bai’s face they both ran behind him to stop him. Seeing them running towards him the
appellant left the axe and ran away. Diwan Singh and Gulab Singh chased him but couldn’t
apprehend him. Later, Bachan Singh was tried and convicted and sentenced to death under
Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by
the sessions judge. The High Court confirmed his death sentence given by the sessions judge
and dismissed his appeal. Bachan Singh then appealed to the Supreme Court by Special
Leave.

JUDGEMENT: “The Supreme Court by a majority of 4:1 held that the provision of death
penalty as an alternative punishment for murder under section 302 insofar it is neither
unreasonable nor it is against the public interest. It violates neither the letter nor the ethos of
Article 19 of the constitution of India. It is constitutionally valid. Exercise of discretion under
sec 354(3) of CRPC, 1973 should be exceptional and grave circumstances and imposition of
death sentence should only be in rarest of rare cases.”

CONSUETUDO PRO LEGE SERVATUR

MEANING:

‘Where there are no specific laws, custom serves as law.’

EXPLANATION:

In almost all societies, custom plays a major role in regulating social actions of a man. It
is one of the earliest sources of legal authority.  However, as culture progressed, customs
faded away, and judicial precedents become the primary source of knowledge. People
establish custom by unconsciously adopting a certain code of conduct, and its authority is
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founded on nothing more than the people's long-term usage and acceptance of it. Custom is a
type of special law that has been practised since the start of history. Customary law is a type
of law that is founded on custom.

The term "custom" comes from the old French word "Coustume." The  "custom" is also
believed derived from the Latin word "Consuetudo." The term "custom" literally or
commonly means tradition, practise, or usage.

Customs are the most significant, and in some cases, the only source of law, in the early
stages of civilization. Both legal systems are built on the basis of customs. They are created
as a result of the society's life. The primitive society's repetitive practise is known as custom.
Customs have been rationalised and are now enshrined in legal codes. Any legal system can
be traced back to the power of tradition.

The magistrates' rulings in Roman law, judges' rule in English law, Manu smriti's ancient
framers’ rulings', Privy Council decisions in Hindu law have all had a significant impact on
the shape and content of the customs. A legitimate basis of law is custom. It must, however,
be a valid custom to be enforced.

What the maxim essentially means is that, in the absence of any codified law, custom can
serve as a law.

FACTS OF THE CASE:

ASS KAUR (DECEASED) BY L.RS. VS. KARTAR SINGH (DEAD) BY

L.RS. AND ORS. 11

A question of some significance in relation to applicability of custom in the matter of

“

inheritance and succession under the Hindu Women's Right to Property Act, 1937 is raised in
this case. Relu singh had two wives Sobhi and Raj kaur. Raj kaur was originally married to
Relu singhs brother who died after which she married Relu Singh. The marriage was done
according to the customary law of the land. Amongst the Sikh Jats of Punjab province, there
exists a custom, where the widow marries her first husband's brother in the Karewa form,
remarriage would not cause forfeiture of her own share. Relu singh had 2 sons and 1 daughter
from first wife. The first wife sobhi and both of her sons died.  Ass Kaur, daughter of Sobhi

11
Ass kaur (deceased) by l.rs. vs. kartar singh (dead) by l.rs. and ors, MANU/SC/2844/2007.
 16
and sister of Mehar Singh and Inder Singh claimed share in the property.  It was urged that
under the Punjab customary laws governing inheritance and succession of Sidhu Jats after the
death of Relu Singh, his two sons and two widows succeeded to his estate. After the death of
Inder Singh and Mehar Singh, their properties were mutated in the name of their mother
Sobhi and their step mother Raj Kaur. The question was whether Ass Kaur should be the
legal heir of property or step mother Raj Kaur.”

JUDGEMENT: The court held that according to the sindhu-jat custom on the death of the
first wife, the other surviving wife takes the property and also married daughters were to be
excluded from heiring the property according to the custom. Bench comprising Justice S B
Sinha and Justice Markandey Katju said: “Following the principle of consuetudo pro lege
servatur (custom serves as law) that the customary law will prevail over the statutory law in
cases where the legislation is silent on the issue. As statutory law did not exclude the
applicability of the customary law, the customary law would prevail over the statutory law.”

CONCLUSION
Many different legal maxims are used on a daily basis in various judicial trials and other
fields.  This project selectively explained some legal maxims. An attempt is made to not only
state the legal principle signified by a maxim/phrase but its application in case laws is also
stated to enable readers to apply it in appropriate situations. A legal maxim is a term that
clarifies a legal theory, proposition, or a lengthy definition. It is useful for condensing long
legal meanings into a manageable short term.

There are several benefits of using legal maxims, but there is also the apparent drawback.
Latin maxims are more likely to be misinterpreted by a average lawyer. It's even more
perplexing because the legal maxims are written in Latin, which is no longer in use. As a
result, maxims must be used with extreme care only after thorough research into their
meaning, as their usage can be manipulative and misleading at times.
 17
BIBLIOGRAPGHY

8. https://blog.ipleaders.in/
9. https://www.legalbites.in/
10. https://bnblegal.com/
11. https://www.scconline.com/
12. https://www.westlawasia.com
13. http://www.manupatrafast.in/
14. www.indiankanoon.org

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directions; you can show all your potential. Learn to write a perfect 500-word essay with this step-by-step guide. An essay is a piece of writing that discloses the writer’s perspective and
argument. A 500-word essay is a common format followed by students. It is a very popular and widespread task assigned to high school and college students. Writing a 500-word essay is
quite difficult as compared to writing a long essay, as you have to cover all the important information in a few words. It doesn’t have any general directions; you can show all your
potential. Learn to write a perfect 500-word essay with this step-by-step guide. An essay is a piece of writing that discloses the writer’s perspective and argument. A 500-word essay is a
common format followed by students. It is a very popular and widespread task assigned to high school and college students. Writing a 500-word essay is quite difficult as compared to
writing a long essay, as you have to cover all the important information in a few words. It doesn’t have any general directions; you can show all your potential. Learn to write a perfect
500-word essay with this step-by-step guide. An essay is a piece of writing that discloses the writer’s perspective and argument. A 500-word essay is a common format followed by
students. It is a very popular and widespread task assigned to high school and college students. Writing a 500-word essay is quite difficult as compared to writing a long essay, as you
have to cover all the important information in a few words. It doesn’t have any general directions; you can show all your potential. Learn to write a perfect 500-word essay with this step-
by-step guide. An essay is a piece of writing that discloses the writer’s perspective and argument. A 500-word essay is a common format followed by students. It is a very popular and
widespread task assigned to high school and college students. Writing a 500-word essay is quite difficult as compared to writing a long essay, as you have to cover all the important
information in a few words. It doesn’t have any general directions; you can show all your potential. Learn to write a perfect 500-word essay with this step-by-step guide.”