Hard cases make bad law?

The X-Case [Attorney General v. X (a minor) & Ors. – 1992], an Irish Supreme Court decision on abortion now twenty years long in the tooth, has attracted renewed media attention in this its anniversary year (e.g. a series of reports on the topic by Kathy Sheridan in The Irish Times.)

At factsaresacred.ie we’re not particularly interested in the rights and wrongs of abortion (amply covered throughout the Irish blogosphere; whatever your persusasion) but in the canards both sides of the debate can deploy.

This time, James Cussen takes a quick look at a pro-life meme which is stated as ‘Hard cases make bad law.’

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On Tuesday, 21st February,  Tonight with Vincent Browne  [TV3 – video] aired a debate on the X-Case with a panel evenly divided into pro-life and pro-choice camps. On the pro-life side, one comment made by (medical) Doctor Berry Kiely caught my attention.

Vincent first outlined a situation for Kiely where a woman, ‘violently raped’, (a redundant adverb you might think) would not wish to be further traumatised by bringing her rapist’s child to term. Vincent then asked her if she could imagine this as good grounds for seeking an abortion.

Kiely equivocated, and ultimately evaded the question by settling on ‘hard cases make bad law’ for her response. She claimed Vincent had been apt to invoke such a maxim himself – and he denied that he would ever use such a ‘dreadful’ cliché.

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Whatever about the phrase being hackneyed, ‘Hard cases make bad law’ simply isn’t the reality of the centuries of Irish (or British, or American) jurisprudence.

Ireland, as a common law jurisdiction (like the others), operates on the basis of each court case being decided on its own (sometimes highly specific) merits. This produces precedent to be adhered to afterwards for similar cases. Cf. Director of Public Prosecutions – Statement of Guidelines for Prosecutors –  (Dublin, 2001), p. 1, Section 1.2 [link].

Parliamentary legislation to be applied usually has a generalist character, but cases are not all expected to represent ‘generality’. Judges have a duty to create new precedents where it is appropriate to do so (i.e. existing precedents are inadequate for the case before them). Cf. Jurispedia – Common Law – [link].

The job of the courts is at least three-fold (this isn’t an exhaustive list of functions:)

  1. Resolve disputes between citizens peaceably and equitably.
  2. Punish wrong-doing with the end of ensuring public safety and compensating victims of crime.
  3. To reconcile the law with the public who live under it in diverse (perhaps idiosyncratic) circumstances and who seek remedies for their specific situation.

A ‘hard’ case then; an especially complicated (even emotive) case, will produce a court decision on it which is ipso facto self-limiting.

If that court decision is to be used by applicants before the courts subsequently, they will have to show the court that their circumstances tally with the circumstances of that case.

This, indeed, is referred to as ‘satisfying the test’. For an example of this common usage, cf.  The Law Reform Commission, Consultation Paper on Penalties for Minor Offences, (Dublin, 2002), p. 13 – ‘This test was first laid down in Conroy v. Attorney General.’ [link]

Dr. Berry Kiely might be surprised, then, to find that monographs on law have appendices brimming with these ‘hard cases’, a.k.a. case law  to everyone else.

To take but a single discrete area of law by itself, such as Family law, and a book such as Family law, sex and society by Peter de Cruz, (New York, 2010) is to find a table of relevant cases (most of them operative and latest precedent) which stretches for several pages.

In short, if one deprecates ‘hard cases’ as ‘bad law’ then one deprecates any power of the courts to interpret legislation (and/or judicially review public bodies charged with implementing legislation) and deliver nuanced remedies for clutches of  atypical cases which deserve them.

Constitutional jurisprudence, for example, has this broad character: such as the discovery by the courts of specific unenumerated rights (rights implicit in the Constitution [Article 40.3] but not listed in their entirety in the original text.)

One of the best arguments for amending, not junking, the current Constitution is that we would lose case law we have accreted since 1937 based on the current text.

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Finally, the complaint about ‘hard cases’  is self-defeating given that it cuts both ways.

If the pro-life side wishes to complain about alleged abuses of abortion law in other jurisdictions (such as women feigning mental distress to secure an abortion – link) or doctors authorising abortions on the grounds of the gender of the foetus (link) then, to follow the maxim to its logical conclusion, why shouldn’t abortion be generally legislated for regardless?

After all, hard cases, such as the aforementioned scenarios, are supposed to make bad law. Right?

1 comment for “Hard cases make bad law?

  1. James Cussen
    March 10, 2012 at 8:10 pm

    A small post-script:

    Lord Denning in ‘Re Vandervell’s Trusts (No2)’ [1974 Ch. 269], cit. in ‘Bar News – Journal of the New South Wales Bar Association’ (Spring, 1999), is instructive.

    “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.”


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