A Normative Theory of the Clean Hands Defense

67 Pages Posted: 27 Aug 2011 Last revised: 15 Apr 2015

See all articles by Ori J. Herstein

Ori J. Herstein

The Hebrew University of Jerusalem, Faculty of Law; King's College London - Dickson Poon School of Law

Date Written: August 26, 2011

Abstract

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 quoque

Suggested Citation

Herstein, Ori J., A Normative Theory of the Clean Hands Defense (August 26, 2011). Legal Theory, Vol. 17, No. 3, 2011; Cornell Legal Studies Research Paper No. 11-27. Available at SSRN: https://ssrn.com/abstract=1917434

Ori J. Herstein (Contact Author)

The Hebrew University of Jerusalem, Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://law.huji.ac.il/eng/segel.asp?staff_id=190&cat=441

King's College London - Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

HOME PAGE: http://www.kcl.ac.uk/law/people/visiting/oherstein.aspx

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