Hard cases make bad law is an

adage An adage (; Latin: adagium) is a memorable and usually philosophical aphorism that communicates an important truth derived from experience, custom, or both, and that many people consider true and credible because of its longeval tradition, i.e. ...

legal maxim A legal maxim is an established principle or proposition of law, and a species of aphorism and general maxim. The word is apparently a variant of the Latin , but this latter word is not found in extant texts of Roman law with any denotation exac ...

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. The original meaning of the phrase concerned cases in which the law had a hard impact on some person whose situation aroused sympathy. The expression dates at least to 1837. It was used in 1904 by US Supreme Court Justice

Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) 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.Holmes was Acting Chief Justice of the Un ...

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".

Discussion

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." The judge's wording suggests that the phrase was not new then.

made a

utilitarian In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals. Although different varieties of utilitarianism admit different charac ...

argument for this in his judgment of '' Northern Securities Co. v. United States'' (1904): Holmes's dissenting opinion in the case, which applied the

Sherman Antitrust Act The Sherman Antitrust Act of 1890 (, ) is a United States antitrust law which prescribes the rule of free competition among those engaged in commerce. It was passed by Congress and is named for Senator John Sherman, its principal author. Th ...

to the securities company, has been described as a reaction to President

Theodore Roosevelt Theodore Roosevelt Jr. ( ; October 27, 1858 – January 6, 1919), often referred to as Teddy or by his initials, T. R., was an American politician, statesman, soldier, conservationist, naturalist, historian, and writer who served as the 26t ...

's wish to dramatize the issues of monopolies and trusts. The legal scholar

Glanville Williams Glanville Llewelyn Williams (15 February 1911 – 10 April 1997) was a Welsh legal scholar who was the Rouse Ball Professor of English Law at the University of Cambridge from 1968 to 1978 and the Quain Professor of Jurisprudence at University ...

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." Bryan A. Garner calls the phrase a cliche; while mentioning Williams's disparagement, he asserts that it remains in frequent use, "sometimes unmeaningfully". In ''

Re Vandervell's Trusts (No 2) ''Re Vandervell Trustees Ltd (No 2)'' 974EWCA Civ 7is a leading English trusts law case, concerning resulting trusts. This was the third decision concerning Tony Vandervell's will. The first was '' Vandervell v Inland Revenue Commissioners'', ...

'',

Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...

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":

Bad law makes hard cases

The adage's

converse Converse may refer to: Mathematics and logic * Converse (logic), the result of reversing the two parts of a definite or implicational statement ** Converse implication, the converse of a material implication ** Converse nonimplication, a logical c ...

, "bad law makes hard cases", has also been used. In his discussion of the converse, the jurist

John Chipman Gray John Chipman Gray (July 14, 1839February 25, 1915) was an American scholar of property law and professor at Harvard Law School. He also founded the law firm Ropes & Gray, with law partner John Codman Ropes. He was half-brother to U.S. Supreme C ...

saw legal professionals as subject to the temptation of valuing the "logical coherency of the system itself" over the well-being of individuals. A more recent discussion of the adage and its converse sees cases that have received special attention as the recipient of more care.

Hard cases make good law

The legal scholar

Arthur Linton Corbin Arthur Linton Corbin (October 17, 1874 – May 1, 1967) was an American lawyer and legal scholar who was a professor at Yale Law School. He helped develop the philosophy of law known as legal realism, and wrote one of the most celebrated legal tre ...

, writing in 1923, reversed the adage in an article entitled "Hard Cases Make Good Law":

References

{{reflist Adages Legal terminology 1830s neologisms English legal terminology

Discussion

Bad law makes hard cases

Hard cases make good law

See also

References