Justice Oliver Wendell Holmes. by Jimbee68 posted Aug 16, 2024 at 10:44 AM When Oliver Wendell Holmes said that hard cases make bad law (in 1904) he wasn't being mean or indifferent. He was just pointing out a fact, and human nature. For example, there's a rash purse snatching on Main Street downtown. And the victims are all war widows. People are outraged. So, the legislators say, we'll make it punishable by life imprisonment, to ever steal a purse again. That fad eventually stops. But the law remains on the books. And common law systems work by precedent. So do civil law systems. And judges, feeling bound to uphold law, start using circular logic. And shortcut normal reasoning even, my law dictionary says. "Why is armed robbery punished with 20 years, and purse snatching life?" a judge will say. "Well," he goes on, "Purse snatching involves women usually, the weaker sex. A purse has personal items in it. A bank doesn't. Um," he'll go on, "and it's a regulatory offense too. Um. Purses have benzene in them, a proven carcinogen" and so forth. Victims have a right to make victim impact statements. And their rights should always be greater and come before the guilty or even the accused. Laws that are arbitrary and vague usually benefit the victim more. And the more conservative the courts, the more likely they will uphold vague laws, like for vagrancy, now. But those are still both very bad ideas. Because hard cases always make bad law, no matter how good an idea it may seem at the time.
