Definition
A Latin term meaning "to distinguish" or "to make a distinction." In legal usage, distinguere appears primarily in the context of interpretive maxims, particularly those governing the construction of statutes and the resolution of apparent conflicts between laws. The term is the root of several well-known Latin maxims counseling courts and interpreters to examine carefully the circumstances, timing, or character of acts before drawing conclusions or reconciling apparently contradictory rules.
Two maxims derived from distinguere appear with particular frequency in classical legal sources:
1. Distinguenda sunt tempora; distingue tempora et concordabis leges — "Times are to be distinguished; distinguish times and you will harmonize laws." Applied to statutory construction, this maxim holds that laws seemingly in conflict may be reconciled by attending to when each was enacted, when each applies, or to what period of time each speaks.
2. Distinguenda sunt tempora; aliud est facere, aliud perficere — "Times must be distinguished; it is one thing to do, another to perfect." This formulation addresses the distinction between initiating an act and completing it — a difference that can carry legal consequences in contract, property, and procedure.
Why It Matters in Research
Researchers encountering distinguere in historical legal texts are almost always in the company of one of these maxims, not the bare Latin verb. The term rarely appears in isolation; its significance is carried by the maxims it generates.
For statutory construction research, the first maxim is substantively important. Early common law courts applied it to resolve conflicts between statutes enacted at different times, to determine which statute controlled a particular transaction, and to argue that apparent inconsistencies dissolved once the temporal scope of each provision was carefully examined. Researchers tracing the history of implied repeal doctrine, or the rule that later statutes supersede earlier ones on the same subject, will find distinguenda sunt tempora invoked as foundational support — or, occasionally, as a counterweight to mechanical application of the later-in-time rule.
The second maxim — aliud est facere, aliud perficere — has relevance in a distinct research stream: the legal significance of incomplete acts. It surfaces in property contexts (when does a conveyance take effect?), in contract (when is performance complete?), and in procedural settings (when is a legal act deemed done?). Researchers should be alert to this maxim appearing in older treatises on conveyancing and in early common law pleading materials, often without extensive commentary, as a settled proposition rather than a contested point.
One navigational caution: because distinguere and its maxims belong to the Latin-maxim tradition, they are embedded more deeply in the common law's formative literature — Coke, Brooke, Bracton, and their commentators — than in modern case law, where the concepts survive but the Latin often does not. Searching modern databases for the Latin form may produce sparse results even when the underlying doctrine is alive and frequently applied under plain-English formulations.
Historical Dictionary Support
Burrill's Law Dictionary is the primary shelf source for this term and provides the essential content: the definition of distinguere as "to distinguish; to make a distinction," paired with the two principal maxims and their citations. Burrill cites 1 Co. 24 for the first maxim and 3 Leon. 243 for the second, locating both in the early modern English common law tradition.
Burrill's treatment is compressed, as is typical for Latin maxim entries in nineteenth-century law dictionaries. The entry records the maxims as settled interpretive tools rather than subjects of debate. What Burrill does not provide — and what researchers should not expect from this source alone — is any analysis of how courts actually applied these maxims in specific cases, or how their weight shifted as statutory construction doctrine developed through the eighteenth and nineteenth centuries. For that analytical depth, the encyclopedia sources and primary treatise literature are necessary supplements.
Other major historical dictionaries (Bouvier, Black's early editions) address the maxims in related entries on statutory construction but do not typically feature distinguere as a standalone entry. Researchers should cross-reference maxim collections and indices to Coke's Institutes when pursuing the first maxim in depth.
Jurisdictional Note
These maxims developed within the English common law tradition and were carried into American jurisprudence through reception of the common law. Their weight as interpretive authority varies by jurisdiction and era; modern courts are more likely to apply the underlying principle without citing the Latin. Civil law jurisdictions have analogous doctrines but different formulations.
Encyclopedia Cross-Reference
Law Mind Encyclopedia: Statutory Construction; Maxims of Law