A Normative Theory of the Clean Hands Defense
Ori J. Herstein
King's College London - School of Law
August 26, 2011
Legal Theory, Vol. 17, No. 3, 2011
Cornell Legal Studies Research Paper No. 11-27
What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD’s primary norm. Yet, while the CHD may at times further court integrity it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque ('you too!'). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar/connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that 'punishment must fit the crime.'
Keywords: clean hands, unclean hands, equity, retributivism, pragmatics, integrity, courts, standing, tu quoqueAccepted Paper Series
Date posted: August 27, 2011 ; Last revised: February 23, 2013
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