Английская Википедия:Hard cases make bad law
Шаблон:Short description 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".
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."[3] The judge's wording suggests that the phrase was not new then.
Oliver Wendell Holmes Jr. made a utilitarianШаблон:Clarify argument for this in his judgment of Northern Securities Co. v. United States (1904):[4] Шаблон:Quote
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":
Bad law makes hard cases
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]
Hard cases make good law
The legal scholar Arthur Linton Corbin, writing in 1923, reversed the adage in an article entitled "Hard Cases Make Good Law": Шаблон:Quote
See also
References
- ↑ Шаблон:Cite book
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- ↑ Hodgens v. Hodgens (1837), quoted in Fred Shapiro, The Yale Book of Quotations (2006).
- ↑ Шаблон:Citation
- ↑ Шаблон:Cite book
- ↑ 6,0 6,1 Шаблон:Cite book
- ↑ 7,0 7,1 Шаблон:Cite book
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- ↑ Шаблон:Cite book
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