Hard Cases Make Good Law

Abstract

When a stated rule of law works injustice in a particular case; that is, would determine it contrary to "the settled convictions of the community," - the rule is pretty certain either to be denied outright or to be undermined by a fiction or a specious distinction. It is said that "hard cases make bad law;" but it can be said with at least as much truth that hard cases make good law. It was largely the crystallization of the rules of the common law that caused the constant appeals to the conscience of the king and his chancellor, and developed the system of law that we know as equity. Even the common law judges themselves had a "conscience." When their stated rules developed hard cases, the rules were modified by the use of fiction, by exceptions and distinctions, and even by direct overruling.