Hard cases make bad law is an adage or legal maxim meaning that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for the average circumstance as this will be more common. [1]
The original meaning of the phrase concerned cases in which the law had a hard impact on some person whose situation aroused sympathy. [2]
The expression dates at least to 1837. It was used in 1904 by US Supreme Court Justice Oliver Wendell Holmes Jr. Its validity has since been questioned and dissenting variations include the phrase "Bad law makes hard cases", and even its opposite, "Hard cases make good law".
The maxim dates at least to 1837, when a judge, ruling in favor of a parent against the maintenance of her children, said, "We have heard that hard cases make bad law." [3] The judge's wording suggests that the phrase was not new then.
Oliver Wendell Holmes Jr. made a utilitarian [ clarification needed ] argument for this in his judgment of Northern Securities Co. v. United States (1904): [4]
Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance ... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.
Holmes's dissenting opinion in the case, which applied the Sherman Antitrust Act to the securities company, has been described as a reaction to President Theodore Roosevelt's wish to dramatize the issues of monopolies and trusts. [5]
The legal scholar Glanville Williams questioned the adage's usage in 1957, writing, "It used to be said that 'hard cases make bad law'—a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law." [6] Bryan A. Garner calls the phrase a cliche; while mentioning Williams's disparagement, he asserts that it remains in frequent use, "sometimes unmeaningfully". [6]
In Re Vandervell's Trusts (No 2) , Lord Denning stated the following, after one of the barristers in the case had asserted that the issues should be resolved in his client's favour, given that "hard cases make bad law":
Mr. Balcombe realised that the claim of the executors here had no merit whatsoever. He started off by reminding us that "hard cases make bad law." He repeated it time after time. He treated it as if it was an ultimate truth. But it is a maxim which is quite misleading. It should be deleted from our vocabulary. It comes to this: "Unjust decisions make good law": whereas they do nothing of the kind. Every unjust decision is a reproach to the law or to the judge who administers it. If the law should be in danger of doing injustice, then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law. But in the present case it has been prayed in aid to do injustice on a large scale—to defeat the intentions of a dead man—to deprive his children of the benefits he provided for them—and to expose his estate to the payment of tax of over £600,000. I am glad to find that we can overcome this most unjust result.
The adage's converse, "bad law makes hard cases", has also been used. [7] [8] [9]
In his discussion of the converse, the jurist John Chipman Gray saw legal professionals as subject to the temptation of valuing the "logical coherency of the system itself" over the well-being of individuals. [10] A more recent discussion of the adage and its converse sees cases that have received special attention as the recipient of more care. [7]
The legal scholar Arthur Linton Corbin, writing in 1923, reversed the adage in an article entitled "Hard Cases Make Good Law":
When a stated rule of law works injustice in a particular case; that is, would determine it contrary to 'the settled convictions of the community,' the rule is pretty certain either to be denied outright or to be undermined by a fiction or a specious distinction. It is said that 'hard cases make bad law;' but it can be said with at least as much truth that hard cases make good law. [11]
The term Jurisprudence is almost synonymous with legal theory and legal philosophy. Jurisprudence as scholarship is principally concerned with what, in general, law is and ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.
Natural law is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law. According to the theory of law called jusnaturalism, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason." Natural law theory can also refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality."
Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.
Equity is a particular body of law that was developed in the English Court of Chancery. Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a case. The concept of equity is deeply intertwined with its historical origins in the common law system used in England. However, equity is in some ways a separate system from common law: it has its own established rules and principles, and was historically administered by separate courts, called "courts of equity" or "courts of chancery".
A brocard is a legal maxim in Latin that is, in a strict sense, derived from traditional legal authorities, even from ancient Rome. According to the dictionaries, the word is a variant of the Latinized name of Burchard of Worms, Bishop of Worms, Germany, who compiled 20 volumes of Ecclesiastical Rules, although some sources disagree.
Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world.
Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formalists believe that there is an underlying logic to the many legal principles that may be applied in different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some legal expertise. Supreme Court Justice Oliver Wendell Holmes Jr., by contrast, believed that "The life of the law has not been logic: it has been experience". The formalist era is generally viewed as having existed from the 1870s to the 1920s, but some scholars deny that legal formalism ever existed in practice.
Oliver Wendell Holmes Jr. was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932. He is one of the most widely cited U.S. Supreme Court justices and most influential American common law judges in history, noted for his long service, pithy opinions—particularly those on civil liberties and American constitutional democracy—and deference to the decisions of elected legislatures. Holmes retired from the court at the age of 90, an unbeaten record for oldest justice on the Supreme Court. He previously served as a Brevet Colonel in the American Civil War, in which he was wounded three times, as an associate justice and chief justice of the Massachusetts Supreme Judicial Court, and as Weld Professor of Law at his alma mater, Harvard Law School. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.
The Nature of the Judicial Process is a legal classic written by Associate Justice of the United States Supreme Court, and New York Court of Appeals Chief Justice Benjamin N. Cardozo in 1921. It was compiled from The Storrs Lectures delivered at Yale Law School earlier that year.
A dissenting opinion is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Restraints of trade is a common law doctrine relating to the enforceability of contractual restrictions on freedom to conduct business. It is a precursor of modern competition law. In an old leading case of Mitchel v Reynolds (1711) Lord Smith LC said,
it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion.
Liversidge v Anderson [1942] AC 206 is a landmark United Kingdom administrative law case which concerned the relationship between the courts and the state, and in particular the assistance that the judiciary should give to the executive in times of national emergency. It concerns civil liberties and the separation of powers. Both the majority and dissenting judgments in the case have been cited as persuasive precedent by various countries of the Commonwealth of Nations. However, in England itself, the courts have gradually retreated from the decision in Liversidge. It has been described as "an example of extreme judicial deference to executive decision-making, best explained by the context of wartime, and it has no authority today." It is therefore mainly notable in England for the dissent of Lord Atkin.
"Justice delayed is justice denied" is a legal maxim. It means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.
The Death of Contract is a book by American law professor Grant Gilmore, written in 1974, about the history and development of the common law of contracts. Gilmore's central thesis was that the Law of Contracts, at least as it existed in the 20th-century United States was largely artificial: it was the work of a handful of scholars and judges building a system, rather than a more organic, historically rooted development based on the evolution of case law. This book is required supplemental reading in the first year program at many U.S. law schools. A second edition was published in 1995, which was edited with a new introduction by Ronald K.L. Collins.
Richard Allen Posner is an American legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chicago Law School, Posner is a leading figure in the field of law and economics, and was identified by The Journal of Legal Studies as the most-cited legal scholar of the 20th century. He is widely considered to be one of the most influential legal scholars in the United States.
Skepticism in law is a school of jurisprudence that was a reaction against the idea of natural law, and a response to the 'formalism' of legal positivists. Legal skepticism is sometimes known as legal realism.
Iura novit curia is a Latin legal maxim expressing the principle that "the court knows the law", i.e., that the parties to a legal dispute do not need to plead or prove the law that applies to their case. The maxim is sometimes quoted as jura novit curia, iura noscit curia, curia iura novit, curia novit legem or variants thereof.
