Hard Cases Make Bad Law

"Is it possible that we could hit a moment of crisis in which the 'debts' created by the rule of law—meaning the consequences incurred by people who have violated it—create dangers for liberalism itself?" https://t.co/hJJElTUqJP

— The Bulwark (@BulwarkOnline) August 9, 2023

Here is the bedrock lesson I want you to grok: Obligations and rules which are necessary in order for systems to function in ordinary times can become dangerous in times of crisis.

This argument is that Biden should pardon Trump largely because hard cases make bad laws. That’s an old adage, maybe too old for Jonathan Last to know. He certainly doesn't seem to know the history of the common law which the U.S. adopted from England; or the history within that common law of the concept of equity.

Obligations and rules can become dangerous in times of crisis, and broadly speaking, that's where equity came into the common law to ameliorate those rules and obligations which were becoming onerous.  You see, the bedrock principle of the common law (one William Rehnquist rested much of his jurisprudence on, and one reason he was never a fan of civil rights law) was property.  This was partly because real property was the only property that was, well...real.  Chattel was stuff that was fungible, replaceable, even manufacturable.  They aren't making any more land, as the old saying goes.  And real property, especially in feudal England, was power and the source of wealth and, so, power.  Even the criminal law arose from regarding people as property of the crown.  The king charged an individual with a crime on the legal theory that the king had a property interest in the victim of that crime.  We later adopted that into the people, in the name of the state, having a legal interest in social order and justice.  That was the theory we got from England; but the historical roots were in being the king's subject and the king being obligated to provide order and protection from brigands.  If the king was protecting you from a crime, it was because the king had suffered a loss.

It's a question of standing, you see.  You can't go to court to enforce another person's rights. But you can, if you're enforcing yours.

So property and rights to property were the basic law.  Torts came along as a civil version of criminal action:  you sued for compensation for damages suffered as the result of the actions of another.  All well and good; but the law became harsh and hidebound.  It arose from the common law, from courts deciding what justice was in one case after another, and weaving together a larger picture of justice from the decisions of so many courts and the precedent of those rulings.  It soon became quite rigid, and, for one thing, quite unconcerned that people were involved.  Damages to property are damages to inert things.  Recompensible, to be sure; but the property doesn't truly suffer injury; the property owner suffers a loss of the value of his property.  That is what is compensated.  People, however, are not property; and justice is not always done by imposing the strictures of law.

Enter the ecclesiastical courts; the courts of the church, back when the church had some temporal power.  People turned to church courts for justice when the common law courts afforded no entry at all.  To this day you only get into a courtroom by claiming a "cause of action," a claim for recompense or remediation that the law recognizes.  Just as you can't "lock her up!" because you don't like someone's opinion or action, whether neither is a violation of statutory law, neither can you sue someone because you're in a bad mood.   You have to have "grounds," and that means you have to have a claim against another that the court recognizes as formulaically valid, as a starting point.

Pause here to remember the 60+ cases where Trump tried to claim electoral fraud in the 2020 election.  All were thrown out in short order because Trump couldn't present evidence to satisfy the needs of the formula (cause of action) he was claiming.  It's two-fold, in other words:  you need the right legal grounds (something more than "I don't like them!"), and you need the facts to invoke those legal grounds and so the authority of the court.

Once you've gotten your cause of action accepted and entered the court, what can the court do for you?  Before equity, all it could do was order compensation, which can sometimes be too little, too late.  What if someone is breaching your contract?  Damages were all you could hope to get.  Today, you might get specific performance, the grounds that forced Elon Musk to buy Twitter after he offered to, and then changed his mind.  What if someone's actions are harming you now, and unless the court stops them, they will damage you further, perhaps causing irreparable injury even if you win your case for damages?  You seek an injunction to enjoin their behavior until a final trial can resolve the problem.  Before equity, the most the common law courts could do was offer you damages after, effectively, your house had burned down and the defendant had run off your animals and taken all your property.

Equity imposed control over behavior; but it couldn't protect property.  That was the province of the common law courts.  Ecclesiastical courts ruled on the behavior of the individual, and imposed some control (through the power of the church) on persons; but never property.  It was a necessity where the then blunt instrument of the law protected only property, and ignored people as largely irrelevant to the question.

If you're thinking ahead to civil rights law and anti-discimination statutes, those are products of statutory law.  But the argument for them stems from centuries of equity in the law:  of recognizing the law treats with persons, not just with property.

Equity can be credited (or blamed) for the principle of the executive pardon.  Undoubtedly the pardon of the crown came out of the alliance and church and state, and the need for the monarch to show Christian charity and forbearance.  Equity in law shares the same root in the Christian church.  That's why Charlie Sykes, writing in rebuttal of Mr. Last, writes:

Pardons can be granted if the individual is actually innocent or has shown signs of rehabilitation. Pardons are also “typically granted only after the convicted person has accepted responsibility for the crime and has demonstrated good conduct for a significant period of time after their conviction or completion of their sentence”.

In other words, pardons are supposed to include an acceptance of responsibility, remorse, and atonement.

"Responsibility, remorse, atonement"?  It's no accident we associate those terms with religion.  Here I would point out that one of the doctrines of equity in law is that you must come with "clean hands" to seek equitable relief.  There's no injunction for you, for example, if you are the party doing the "bad thing" and seeking court protection to keep doing it.  It's a bit watered-down from the original moral obligation of the church courts, but it's still there. 

To Mr. Last's argument that perhaps Biden should pardon Trump for the sake of the body politic, I would answer (as Mr. Sykes doesn't), that hard cases make bad law.  The pardon of Richard Nixon was such a case, and Mr. Ford paid for it by remaining the only POTUS in our history who was never elected to the office, or even the office of VPOTUS.  Mr. Trump acted with impunity, and continues to do so.  I agree that pardons are supposed to include an acceptance of responsibility, remorse, and atonement, which is why some pardons never set well with the public, and others do.  Hard cases are not always forced on us.  Sometimes we make them hard by how we try to resolve them.

I can't see the DOJ Office of Pardons attorney recommending a pardon for Mr. Trump; and I think President Biden would be wise to follow their advice in such a matter.