Page:Harvard Law Review Volume 9.djvu/43

15 THE USE OF MAXIMS IN JURISPRUDENCE, 1 5 " The maxim, . . ., is no help to decision, as it cannot be applied till the decision is made." ^ " Sic utere tuo ut aliefium non Icedas : how can this duty be understood without first knowing the meaning of fi/um and injury?"''^ " The attempts to solve these difficulties, which one meets with in ordi- nary law books, are merely identical propositions, and amount to nothing : e.g., Qui jure suo utitur neminem Icedit. If by lozdit be meant damage or evil, it is false (and inconsistent with what immediately precedes) ; since the exercise of a right is often accompanied with the infliction of positive evil in another. If by Icedit he meant injury, the proposition amounts to this ; that the exercise of a right cannot amount to a wrong • which is purely identical and tells us nothing ; since the thing we want to know is '■ what is right } (or what is that which I may do without wrong ?) ; and what is wrong? (what is that which would not be an exercise of my own right, inasmuch as it would amount to a violation of a right in another?).'" " The same observations are applicable to Sic utere tuo ut alienum non l^dasr « " The maxim, Sic utere tuo ut alienum non Icedas, is iterated and reit- erated in our books, and yet there is scarcely an aphorism known to the law the true application of which is more vague and undefined. Inter- preted literally it would enjoin a man against any use of his own property which in its consequences might injuriously affect the interests of others ; but no such legal principle ever existed." " While, therefore. Sic utere tuo, &c., may be a very good moral precept, it is utterly useless as a legal maxim. It determines no right ; it defines no obligation." * "The maxim Sic utere tuo ut alienum non Icedas, as commonly trans- lated (' So use your own as not to injure another's '), is doubtless an ortho- dox moral precept; and in the law, too, it finds frequent application to the use of surface and running water, and indeed generally to easements and servitudes. But strictly, even then, it can mean only, ' So use your own that you do no legal damage to another's.' Legal damage, actionable injury, results only from an unlawful act. This maxim also assumes that the injury results from an unlawful act, and paraphrased means no more than : ' Thou shalt not interfere with the legal rights of another by the commission of an unlawful act,' or ' Injury from an unlawful act is actionable.' This affords no aid in this case in determining whether the act complained of is actionable, that is, unlawful. It amounts to no 1 Sir Wm. Erie, in Brand v. H. & C. R. Co., L. R. 2 Q. B. 223, p. 247. 2 2 Austin on Jurisprudence, 3d ed. 795. 8 2 Austin on Jurisprudence, 3d ed. 829.
 * Seldon, J., in Auburn, &c. Co. v. Douglass, 9 New York, 444, p. 445, 446.