According to Wikipedia the ‘legal scholar Glanville Williams questioned the adage’s usage in 1957, writing, “It used to be said that ‘hard cases make bad law’—a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law.”[6] Bryan A. Garner calls the phrase a cliche; while mentioning Williams’s disparagement, he asserts that it remains in frequent use, “sometimes unmeaningfully”.[6] In Re Vandervell’s Trusts (No 2), Lord Denning MR stated the following, after one of the barristers in the case had asserted that the issues should be resolved in his client’s favour, given that “hard cases make bad law”:
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.
SA courts make popular judgments at the expense of law: Leon Louw’s latest column in BDLive publihsed by Business Day yesterday.
Excerpts
The Constitution says that everyone has the right to have “any dispute that can be resolved by … law decided in … a court or … independent and impartial tribunal”. It vests judicial authority “in the courts”. Regardless of what anyone thinks about Zuma, they should think critically about whether they really want executive officials making judicial and public policy decisions.
The other judgments entail similarly disturbing implications. Regarding the Pistorius case, for instance, popular sentiment wanted and got a murder conviction. During the apartheid years, prosecutors wanted the dice loaded against suspects, especially black activists, by making convictions easy and defence difficult. One of their aspirations was murder convictions when they could not prove murder; to equate recklessness (dolus eventualis) with intent, despite the fact that everyone knows they differ. Unintentional death – which, rightly or wrongly, was the court’s finding – is now regarded as intentional murder. It is like being convicted of murder for having a fatal collision when intending no harm and driving a car with worn tyres or brakes.
During its early years, the Constitutional Court said in the Makwanyane death penalty case that courts should not be influenced by public opinion. Brassey’s lament regarding the Nkandla judgment is “hic sunt dracones” (here be dragons). Before encouraging and celebrating popular judgments, long-term implications for justice, democracy and the rule of law should be considered.