Hard Cases Make Good News (pt. 1)

The modern news media presents the world as dominated by the extreme, exceptional, perpetually adversarial, and the difficult to deal with. It presents a world of hard cases, or (in its own word) the crisis. The necessity of doing this is from the nature of their business: they can’t exist without capturing and holding attention, and they can’t do this with the everyday, common, or unexceptional. This is, in fact, exactly what the news has to break us away from to capture our attention.

None of this is a critique of news, but it does set up a problem given that we write laws to govern the world as we understand it, and to understand it through the news is to understand it by its crises or hard cases. But hard cases make bad law, and so to legislate according to the world as understood through news makes for injustice and undermines law altogether.  But what’s the reasoning behind the proverb that a hard case makes for bad law?

The best line of reasoning is from experience – anyone in authority has experience of the times when to apply the rules would destroy the very intent of the rule, or would have such deleterious effects that, if only this case were considered, one would not have written the law at all. As a teacher, I have to deal with this all the time in more or less every rule I have to apply: from ones dealing with deadlines, make-up work, graduation requirements, students with strange sicknesses / disabilities/ extreme talents/ temporary crises, etc. This is the basic situation of anyone in authority – you must follow the rules, but the rules must have exceptions. So what then? There is a limitation placed on legislators: they cannot be cognizant of the exceptional case. Their work is circumscribed to trying to bring about (a) the good of the citizens (b) so far as it possible given both human frailties and (b1) the strictures of custom, which (c) can be expressed by clear and intelligible laws, and (in the case of civil legislators) which (d) must carry the threat of coercive force. This necessarily leaves out any number of exceptional cases which the legislator has to see himself as essentially unable to eliminate and which are therefore not his business to consider – In chasing after the hard cases, he’ll end up violating one of the features above.

But the problem with hard cases is not just that they are exceptional; there is also the problem that in adapting the law to the hard case, you by definition have to treat all or most people in the way you deal with the single (or small number) of peculiar and aberrantly wicked people. We can only make the net of legislation fine enough to deal with the exceptional case if we weave it to catch everyone, and, like all law, this brings with it the threat of coercive force.  Legislating by hard cases and crises is therefore proper to tyranny, since it is an instrument by which the state implicitly considers all (or the many) as enemies of goodness who must be dealt with by force.

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1 Comment

  1. CJ Wolfe said,

    December 29, 2012 at 12:39 pm

    It seems to me that your question relates both to Thomas on evil as well as Thomas on postive/natural law. What can we say about hard cases given what Thomas says about the problem of evil? I wanted to throw that question out there because it seems to me that the victims in these hard cases will not receive just restitution, and there’s simply nothing that can be done by human authorities about it. If I remember Jacques Maritain’s neo-Thomist way of talking about the problem of evil, it goes something like this: evil is a nihilating force that sometimes cannot be annihilated


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