The meaning of this Latin phrase, which has become a proverb, is warning of how an application of the law strictly to the letter can become a huge injustice.
It is a Latin maxim remarkably rooted in the West because it has become a Latin proverb or phrase or sentence, like many others which in its conciseness and brevity are loaded with meaning content.
Many citizens who reject a stickler and mechanical application of the law, which, as it is collected on Digesta Iustiniani, 40, 9.12 on another lapidary sentence also, is always hard: Dura lex, sed lex, The law is harsh, but it is the law.
There are also many supporters of a harsh application. Perhaps without an enough knowledge of the situation, I have the personal impression that the law is a stickler application in the US, although the Anglo-Saxon tradition of law based on the experience of the application, which applies in Britain, it would seem advise the opposite.
The origin of this phrase does not appear in the world of law itself, because it contains within itself a contradiction or denial of the law itself. It seems rather collect the value of experience in the application, which advised to consider the circumstances of the breach of the rule and its application.
From a rhetorical point of view it would be a kind of an oxymoron ((gr. Ὀξύμωρον) or union of two ideas of contradictory significance or "ingenious absurdity" as they call the Greek, or in Latin "contradictio in terminis" (contradictio in terms –linguistic terms-), which is explained by the context. The word “oxymoron” comes from the Greek ὀξύς (oxys, 'sharp, stabbing') and μωρός (morós. 'flabby, dull, stupid'); so that the same word is a example of an oxymoron.
It can also be seen as a case of "etymological figure" or use of various forms derived from the same lexeme: "iniuria", derived from “ius”, refuses it.
The phrase such as "summum ius summa iniuria" only appears in Cicero on his work “On Duties” (De officiis I, 33), which later I will comment.
It is cited as precedent a very similar text of a comedy of Terence. Terence used in its Heautontimorumenos (The tormentor of himself) the term "summum ius saepe malitia summa'st", " Extreme law, often extreme evil”.
Terence, the Latin author of comedies, is directly inspired, if not literally translator, in the Greek comedies of Menander. This fact and the Greek influence also in Cicero himself, suggests that the origin of the phrase would be in the Greek world, but we do not keep the work of Menander to check it.
In any case it is true that it is arisen in the Greek world the question of the relationship between justice δίκαιον, dikaion, νόμος , nomos, the law, and ἐπιείκεια, epiqueya, equity.
Note that in the implementation of the right of Attica it is preferred the arbitration and the conciliatory proposals than the exclusive performance of the courts.
Cicero, collecting definitely an opinion and widespread citizen feeling, rejects or warns of the formalistic and literal rigidity of Roman law, as it is clear from the examples adduced in the text that I will immediately transcribe, without claiming why that the judgment Iuridicum question was part of the corpus iuridicum itself.
"Epikeia" ἐπιείκεια (equity), is a Greek term, with legal value, which refers to the concrete application of a law, which is always general, to the specific cases which are real. It is a moral virtue that allows a person not to apply the literal observation of a positive rule to respect and be faithful to the meaning or true spirit of the regulation itself. The dictionary of the Royal Spanish Academy defines it as: 1. f. Moderate and cautious interpretation of the law, according to the circumstances of time, place and person.
The ancients (Plato, Aristotle, …) devoted much time to this issue of "epikeia" and therefore the meaning and value of the law as an instrument for its application. This subject certainly deserves an article that I will do.
So the first Latin text with this phrase corresponds to Terence, who, as I said in his Heautontimorumenos (The tormentor of himself), Act IV, Scene 5.48 (v. 796) uses the term "ius summum saepe summa'st malitia ".
Note: the comedy of Terence, copy or a simply translation of one similar of Menander, was represented for the first time in the year 163 BC. On it Menedemus, another elderly father torments himself and regrets being too stern father who forced his son Clinias to run away from home and enlist in a foreign army. Then the play is developed around a love affair typical of these comedies.
HEAVTON TIMORVMENOS 795 (Act4,5,48)
SYRUS: But for my part, Chremes, I take it well and good, either way.
CHREMES: But still, I especially wish you to do your best for it to be brought about; but in some other way.
SYRUS: It shall be done: some other method must be thought of; but as to what I was telling you of,–about the money which she owes to Bacchis,–that must now be repaid her. And you will not, of course, now be having recourse to this method; "What have I to do with it? Was it lent to me? Did I give any orders? Had she the power to pawn my daughter without my consent?" They quote that saying, Chremes, with good reason, " Riorous law1 is often rigorous injustice."
CHREMES: I will not do so.
SYRUS: On the contrary, though others were at liberty, you are not at liberty; all think that you are in good and very easy circumstances.
(Translation by Henry Thomas Riley, Ed.)
SYRUS: (servus)Caeterum equidem istuc, Chrene,
Aequi bonique facio.
CHREMES: (pater)atqui quam maxume
volo te dare operam ut fiat, verum alia via.
SYRUS : fiat, quaeratur aliquid. sed illud quod tibi 790
dixi de argento quod ista debet Bacchidi,
id nunc reddendumst illi: neque tu scilicet
illuc confugies: "quid mea? num mihi datumst?
num iussi? num illa oppignerare filiam
meam me invito potuit?" verum illuc, Chreme, 795
dicunt: "ius summum saepe summast malitia."
CHREMES. haud faciam.
SYRUS. immo aliis si licet, tibi non licet:
“omnes te in lauta et bene acta parte putant.”
The phrase of Cicero is the only one that appears as such in Latin literature. It appears in his work On Duties (De officiis) lib.I, 33.
Injustice often arises also through chicanery, that is, through an over-subtle and even fraudulent construction of the law. This it is that gave rise to the now familiar saw, “More law, less justice.” Through such interpretation also a great deal of wrong is committed in transactions between state and state; thus, when a truce had been made with the enemy for thirty days, a famous general went to ravaging their fields by night, because, he said, the truce stipulated “days,” not nights. Not even our own countryman's action is to be commended, if what is told of Quintus Fabius Labeo is true—or whoever it was (for I have no authority but hearsay): appointed by the Senate to arbitrate a boundary dispute between Nola and Naples, he took up the case and interviewed both parties separately, asking them not to proceed in a covetous or grasping spirit, but to make some concession rather than claim some accession. When each party had agreed to this, there was a considerable strip of territory left between them. And so he set the boundary of each city as each had severally agreed; and the tract in between he awarded to the Roman People. Now that is swindling, not arbitration. And therefore such sharp practice is under all circumstances to be avoided.
Again, there are certain duties that we owe even to those who have wronged us. For there is a limit to retribution and to punishment; or rather, I am inclined to think, it is sufficient that the aggressor should be brought to repent of his wrong-doing, in [p. 37] order that he may not repeat the offence and that others may be deterred from doing wrong.
Then, too, in the case of a state in its external relations, the rights of war must be strictly observed. For since there are two ways of settling a dispute: first, by discussion; second, by physical force; and since the former is characteristic of man, the latter of the brute, we must resort to force only in case we may not avail ourselves of discussion. (English Translation. Walter Miller. Cambridge. Harvard University Press; Cambridge, Mass., London, England. 1913.)
This story is told of Cleomenes, King of Sparta (520- 491 B.C.), in the war with Argos. (Plutarch, on Apophthegmata Laconica, 223A)
DE OFFICIIS LIBER PRIMVS 33
Existunt etiam saepe iniuriae calumnia quadam et nimis callida sed malitiosa iuris interpretatione. Ex quo illud "summum ius summa iniuria" factum est iam tritum sermone proverbium. Quo in genere etiam in re publica multa peccantur, ut ille, qui, cum triginta dierum essent cum hoste indutiae factae, noctu populabatur agros, quod dierum essent pactae, non noctium indutiae. Ne noster quidem probandus, si verum est Q. Fabium Labeonem seu quem alium–nihil enim habeo praeter auditum –arbitrum Nolanis et Neapolitanis de finibus a senatu datum, cum ad locum venisset, cum utrisque separatim locutum, ne cupide quid agerent, ne appetenter, atque ut regredi quam progredi mallent. Id cum utrique fecissent, aliquantum agri in medio relictum est. Itaque illorum finis sic, ut ipsi dixerant, terminavit; in medio relictum quod erat, populo Romano adiudicavit. Decipere hoc quidem est, non iudicare. Quocirca in omni est re fugienda talis sollertia.
Sunt autem quaedam officia etiam adversus eos servanda, a quibus iniuriam acceperis. Est enim ulciscendi et puniendi modus; atque haud scio an satis sit eum, qui lacessierit, iniuriae suae paenitere, ut et ipse ne quid tale posthac et ceteri sint ad iniuriam tardiores.
Atque in re publica maxime conservanda sunt iura belli. Nam cum sint duo genera decertandi, unum per disceptationem, alterum per vim, cumque illud proprium sit hominis, hoc beluarum, confugiendum est ad posterius, si uti non licet superiore.
Interestingly we find an appointment on Columella, author of a work on agriculture, based on the relationship of master and owner of the land with his colonists; He says in De re rustica, Book I, 7:
After all these arrangements have been acquired or contrived, especial care is demanded of the master not only in other matters, but most of all in the matter of the persons in his service; and these are either tenant-farmers or slaves, whether unfettered or in chains. He should be civil in dealing with his tenants, should show himself affable, and should be more exacting in the matter of work than of payments, as this gives less offence yet is, generally speaking, more profitable. For when land is carefully tilled it usually brings a profit, and never a loss, except when it is assailed by unusually severe weather or by robbers; and for that reason the tenant does not venture to ask for reduction of his rent. But the master should not be insistent on his rights in every particular to which he has bound his tenant, such as the exact day for payment, or p81the matter of demanding firewood and other trifling services in addition, attention to which causes country-folk more trouble than expense; in fact, we should not lay claim to all that the law allows, for the ancients regarded the extreme of the law as the extreme of oppression. (The English translation is that of the Loeb Classical Library edition: Vol. I (Books 1 4) by H. B. Ash, first published in 1941).
His omnibus ita vel acceptis vel compositis, praecipua cura domini requiritur, cum in ceteris rebus, tum maxime in hominibus. Atque hi vel coloni vel servi sunt, soluti aut vincti. Comiter agat cum colonis, facilemque se praebeat. Avarius opus exigat quam pensiones, quoniam et minus id offendit, et tamen in universum magis prodest. Nam ubi sedulo colitur ager, plerumque compendium, numquam (nisi si caeli maior vis aut praedonis accessit) detrimentum affert, eoque remissionem colonus petere non audet. Sed nec dominus in unaquaque re, cum colonum obligaverit, tenax esse iuris debet, sicut in diebus pecuniarum, ut lignis et ceteris parvis accessionibus exigendis, quarum cura maiorem molestiam quam impensam rusticis licet. Nec sane est vindicandum nobis quidquid licet. Nam summum ius antiqui summam putabant crucem.
Note that Columella replaced "iniuria" by "crucem", cross, with the meaning of punishment, which also moves away the expression of the legal technical language.
There is another curious appointment at the first of the letters of St. Jerome (c.340-420), which in this case he sends to his fellow Innocent. On it he tells the miraculous story of a Christian girl falsely accused by her husband of adultery. She denies the accusation relying on God's help. The executioner tries execute her six times in vain; every time he downloads the stroke of his sword on the neck of the young, the sword is stopped by contact with meat. A second executioner finally gets at the seventh attempt to kill the girl, who suddenly comes to life with God's help. Meanwhile another woman has died, who replaces the first at the tomb; the revived girl is hidden on a nearby farm. But behold, a zealous officer suspects something and asks to see again the body of the young. That's when Jerome exclaims on paragraph 14 of the letter:
Before such opprobrious words the executioner retires in confusion, while the woman is secretly revived at home. Then, lest the frequency of the doctor's visits to the church might give occasion for suspicion, they cut her hair short and send her in the company of some virgins to a sequestered country house. There she changes her dress for that of a man, and scars form over her wounds. Yet even after the great miracles worked on her behalf, the laws still rage against her. So true is it that, where there is most law, there, there is also most injustice. (Freemantle, M.A., The Hon. W.H. Translator), 1892)
Tali invidia carnifice confuso clam domi mulier fodiatur et, ne forte creber ad ecclesiam medici commeatus suspicionis panderet viam, eum quibusdam virginibus ad secretiorem villulam secto crine transmittitur. Ibi paulatim virili habitu veste mutata in cicatricem vulnus obducitur. Et—‘ O vere ius summum summa malitia! ’—post tanta miracula adhuc saeviunt leges.
Interestingly, Jerome uses the term of Terence "summa malitia" and not that of Cicero "summa iniuria", which is what has become widespread later, probably by the colorful and rhetoric contrast "ius / in-iuria".
In short, the proverb warns us that rigorous and literal application of positive law, can produce great damage, so the judge or bailiff must act on the advice of the equity; otherwise the law and justice can become ironically an injustice.
This explains what the Spanish Civil Code states in Article 3:
1. Rules shall be interpreted according to the meaning of his own words, in relation to the context, historical and legislative history, and the social reality of the time on that must be applied, mainly in response to the spirit and purpose of those.
2. Equity must be weighed in the application of the rules, although the decisions of the tribunals can only rest exclusively on it when the law expressly permits it.
The proverb, moreover, is widespread in all languages, including: on English: Rigorous law is often rigorous injustice./ Extreme law, extreme injustice; on Italian: il sommo diritto è somma ingiustizia or Gran giustizia, grande offesa; on French: Excès de justice, excès d’injustice; on German: Das strengste Recht, das grösste Unrecht.