hard cases

Anton Sherwood (dasher@netcom.com)
Tue, 3 Feb 1998 23:27:17 -0800 (PST)

<hagbard> writes:
: I spend a good amount of time reading up on current research, but
: still I know next-to-nothing. The people many trust to make, interpret,
: and change the law know even less than I do. As the old legal adage goes,
: tough cases make bad law.

The term [`hard cases'] originally meant cases that tug at the heartstrings;
that is its meaning in the old saw `hard cases make bad law.' By semantic
drift it has come to mean difficult cases, which makes nonsense of the old saw.
Only difficult cases make law, good or bad. Cases that are easy to decide are
so by virtue of being controlled by existing law.
-- Richard A. Posner, "The Problems of Jurisprudence" (1990), 161n.

There is an old and somewhat foolish saying that `Hard cases make bad law,'
and therefore the law must be left as it is. It would be equally true to say,
`Bad law makes hard cases,' and therefore the law must be amended. The real
truth lies somewhere between. Mere freaks of fortune should not be made an
excuse for weakening a law which is sound. But a law which is seen to multiply
hard cases, not through any accident but by its necessary elements, is not
worth preserving, for the law was made for man, not man for the law.
-- A. P. Herbert, through the fictional Justice Wool in Pale v. Pale

Anton Sherwood *\\* +1 415 267 0685 *\\* DASher@netcom.com