Property, Justification and Need

Abstract

It is said that hard cases make bad law. But one of our tasks in jurisprudence is to consider the justification of legal institutions. If this enterprise is to be conducted in a spirit of argument rather than ideology, then hard cases—indeed the hardest cases—must be our primary point of reference. To undertake with any integrity to defend an institution, one must be willing to contemplate the existence of serious moral objections. In many cases, that involves confronting the possibility that the institution under discussion has an unacceptable impact on people’s lives—that it imposes unbearable costs, for example, or unacceptably constrains their freedom or their dignity. To defend an institution in an ideological way is to ignore or conceal such possibilities. Justification, by contrast, involves a willingness to confront the issue of unacceptable hardship. Its success (if indeed the institution is justified) turns on one’s ability to show that the hardship will not in fact occur, or that it is unavoidable or for some other reason not morally unacceptable in the circumstances.