A Normative Theory of the Clean Hands Defense

Legal Theory 17 (3):171-208 (2011)
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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 or 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.” Copyright © Cambridge University Press 2011. Also available at http://journals.cambridge.org/action/displayJournal?jid=LEG

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Ori Herstein
King's College London

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Freedom of the will and the concept of a person.Harry G. Frankfurt - 1971 - Journal of Philosophy 68 (1):5-20.
Hypocrisy, Moral Address, and the Equal Standing of Persons.R. Jay Wallace - 2010 - Philosophy and Public Affairs 38 (4):307-341.
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Casting the First Stone: Who Can, and Who Can’t, Condemn the Terrorists?G. A. Cohen - 2006 - Royal Institute of Philosophy Supplement 58:113-136.

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