A Normative Theory of the Clean Hands Defense

Legal Theory 17 (3):171-208 (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 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
Keywords Law and Philosophy  Legal Thoery  Retribution  Tu quoque  Clean hands  Remedies  Speech acts  Integrity
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DOI 10.1017/S1352325211000152
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