Document Type

Article

Publication Date

9-2011

Keywords

Clean hands defense, Equity, Retributivism, Pragmatics, Standing, Tu quoque

Disciplines

Criminal Law

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.”

Publication Citation

Published in: Legal Theory, vol. 17, issue 3 (September 2011).

Included in

Criminal Law Commons

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