DIVINARE - The Law Mind Legal Dictionary

DIVINAREAuthored

The Law Mind • 913 words

Definition

A Latin term of the civil and common law tradition meaning to divine, conjecture, guess, or foretell. In legal usage, divinare describes an improper mode of reasoning—specifically, the act of departing entirely from the text of an instrument and substituting speculation or guesswork in place of genuine interpretation. The term appears most often in the context of two related maxims:

1. Divinatio, non interpretatio est, quae omnino recedit a litera. That which departs entirely from the letter is guessing, not interpretation. The maxim constrains courts and interpreters from reading meaning into a document that cannot be grounded in its actual language.

2. Nemo tenetur divinare. No man is bound to divine—that is, no person is required to have foreknowledge of a future event, nor to guess at the undisclosed intention of parties to an instrument.

Common Language

Modern common usage (Wiktionary): To divine means to discover or intuit something by supernatural means, or more loosely, to guess or discern something not readily apparent.

Historical common usage (Webster's 1913): To divine is to foretell; to presage; to conjecture; to guess; or to have or feel a presentiment of something.

The common meaning of divination carries a sense of inspired or supernatural insight. The legal use strips that sense away entirely. In law, divinare is a term of reproach—labeling an act of interpretation as mere guessing precisely because it cannot be grounded in text. Where the common language treats divination as a special gift for perceiving the hidden, the legal maxim uses it to condemn any reasoning that substitutes speculation for textual analysis.

Common Confusion

Divinare is sometimes loosely equated with liberal or purposivist statutory construction. The two are distinct. Purposivist interpretation still operates from the text as a starting point and draws on recognized sources such as legislative history. Divinare denotes something further—total departure from the letter of the instrument, with nothing but conjecture to support the reading. The maxim does not condemn all inference; it condemns interpretation untethered from text altogether.

Why It Matters in Research

Researchers will encounter divinare almost exclusively in the context of maxims rather than as a free-standing legal doctrine. Its practical significance lies in two connected fields: rules of statutory and contractual construction, and the principle that parties are not bound by undisclosed intentions or unforeseeable future events.

The maxim Divinatio, non interpretatio est was invoked as a restraint on judicial creativity in the common law tradition, particularly in the interpretation of deeds, statutes, and contracts. It appears in Bacon's Maxims of the Law and was cited to Year Book authority (3 Hen. VI. 20), giving it pedigree in early English legal literature. Researchers tracing the history of textualism or the plain-meaning rule will find divinare and its associated maxim relevant background, though the term itself largely dropped out of English-language legal argument by the nineteenth century as the maxims were absorbed into the general vocabulary of construction doctrine without the Latin label.

Nemo tenetur divinare, the companion maxim reported in Burrill from Coke (10 Co. 55), operates in a distinct register—it is an exculpatory principle. No party is required to have anticipated what was not foreseeable. This form of the maxim connects to impossibility doctrine, mistake doctrine, and the interpretation of notice requirements. Researchers working on those areas should note that the Latin label may not appear in modern cases even when the underlying principle is applied.

The primary research trap is assuming that cases citing "interpretation must not depart from the letter" are citing divinare by name. In practice, the maxim has been absorbed into construction doctrine without the Latin. Searches limited to the term itself will miss most of its modern application.

Historical Dictionary Support

Black's Law Dictionary (1st and 2nd editions) and Burrill's Law Dictionary are in close agreement on the core definition. All three sources translate divinare as "to divine; to conjecture or guess; to foretell" and all reproduce the maxim Divinatio, non interpretatio est, quae omnino recedit a litera. Black's in both editions traces the maxim to Bacon's Maxims, Rule 3 (Bac. Max. 18), with a citation to the Year Book of 3 Henry VI.

Burrill adds the companion maxim, Nemo tenetur divinare, citing 10 Co. 55—a valuable supplement that Black's omits. This is not a trivial divergence: the nemo tenetur form of the principle applies in an entirely different practical context (foreseeability and imputed knowledge) from the interpretive maxim, and researchers relying solely on Black's would miss it.

What the historical dictionaries do not address is the degree to which both maxims had already become archaic legal apparatus by the time these dictionaries were compiled. They are preserved as Latin learning rather than as living procedural rules, and neither Black's nor Burrill situates them within the broader common law architecture of construction doctrine where their legacy actually persists.

Jurisdictional Note

As a Latin maxim of the civil and common law tradition, divinare and its associated principles were received into both English and American common law. The maxims' substance—that courts must not depart entirely from a text's language in the guise of interpretation—remains active across common law jurisdictions, though it is now expressed in doctrinal language (plain meaning rule, four corners rule) rather than in the Latin. Civil law systems retain comparable textual canons under different formulations.

DIVINAREmain

Black's Law Dictionary • 1891

Lat. To divine; to con- jecture or guess; to foretell. Divinatio, a conjecturing or guessing. Divinatio, non interpretatio est, quæ omnino recedit a litera. That is guess- ing, not interpretation, which altogether de- parts from the letter. Bac. Max. 18, (in reg. 3,) citing Yearb. 3 Hen. VI. 20. H J K

DIVINAREmain

Burrill's Law Dictionary • 1867

Lat. To divine; to conjecture or guess; to foretell. Divinatio; a conjecturing or guessing. Nemo tenetur divinare. No man is bound to divine; that is, to have foreknowledge of a future event. 10 Co. 55. No man is bound to guess at the intention of the parties to an instrument. Divinatio, non interpretatio est, quæ omnino recedit a litera. That is guessing, not interpretation, which altogether departs from the letter. Bacon's Max. 18, (in reg. 3,) citing Yearb. 3 Hen. VI. 20. DIVISA, Devisa. L. Lat. [from Fr. diviser, to divide.] In old English law. A division or partition. A division or distribution of goods by will; a will or testament of goods or chattels. Spelman. Cowell. Glanv. lib. 12, c. 20. Id. lib. 7, c. 5. Hence the modern devise, now confined to mean a will of lands or disposition of real estate by will. See Devise. A division or boundary between neighboring or adjoining lands, (L. Fr. devise, q. v.) such as a highway; a wall, ditch or stream; a stake or stone. Bract, fol. 180 b. As to streams, see Fleta, lib. 4, c. 6, § 3. It might also be composed of the land itself, (fit divisa de consensu vicinorum, ex eorum terra,) in which case it was common to both proprietors, (et est talis divisa communis inter eos). Bract. ub. sup. Fd. fol. 167. The use of strips of unploughed land, as boundaries in open or common fields, still prevails in England. Stat. 6 & 7 Will. IV. c. 115. Dicitur divisa eo quod dividit agros et tenementa; it is called divisa because it divides lands and tenements. Bract. fol. 180 b. See Fleta, lib. 4, c. 6, § 3. The word was more commonly used in the plural, (divisa, or devisa,) and very frequently in connection with the terms meta, (metes,) and bunda, (bounds,) though not very clearly distinguished from either. Per metas et divisas. Reg. Orig. 157 b. Super bundis et divisis. Id. 263 b. Metæ, bunda et divisa. Reg. Jud. 84 b. Bunda, et metæ et rationabiles divisæ, quæ ponuntur in terminis agrorum, ad distinguendum prædia et dominia vicinorum; bounds and metes and reasonable divisions, which are placed in the limits of fields to distinguish the lands and properties of neighbors. Bract. fol. 166 b. See Fleta, lib. 5, c. 41. A sentence or decree. Cowell. LL. Hen. I. c. 9, cited ibid. DIVISÉ. L. Lat. Separately. Lord Ellenborough, 15 East, 559.

DIVINAREmain

Black's Law Dictionary (2nd Ed.) • 1910

Lat. To divine; to conjecture or guess; to foretell. Divinutio, a conjecturing or guessing. . Divinatio, non interpretatio est, que omnino recedit a litera. That is guessing, not interpretation, which altogether departs from the letter. Bac. Max. 18, (in reg. 3,) citing Yearb. 3 Hen. VI. 20.

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