Hard cases make good laws???

By the time Oliver Wendell Holmes said it, "hard cases make bad law" was already a well known adage and an accepted legal maxim. The phrase suggests that extreme cases are not good examples to us for writing general laws.  It seems hardly necessary to quote sources for this common sense phrase and yet it seems that it has become uncommon common sense in an age when extremes are used all the time to define law or rule.

Nearly every physician admits that there is hardly ever a case in which an abortion is necessary for the physical health of the mother and many suggest that the circumstances when the health of the mother is most at risk lie during childbirth itself.  Yet this is used so often as a way of challenging those who insist abortion is wrong.  In other words, the extreme case of the physical health of the mother is used to define the ordinary approach to abortion and therefore abortion ought to be legal, easily accessible, safe, and, most of all, free.

In other cases, the extreme is cited to challenge the ancient practice of close(d) communion.  In reality there are only rare instances when the sacrament is offered in an emergency and most of the situations are about preference or convenience.  Nonetheless, the argument is raised about the instance, no matter how rare, in which urgency and discretion violate the strict rule of close(d) communion and this is used to justify no boundaries to the Lord's Table whatsoever-- at least none beyond the conscience of the individual deciding whether or not to commune.  Again, it is a case of an extreme case being used to define regular practice.

Missouri faced this in 1989 when we decided to fudge a bit on Augustana XIV and regularize the exceptions and make it possible ordinarily for non-ordained to do what only the ordained had done.  No one can deny the history of exception and exceptional case and yet this was turned upon its head to become the new rule by which every case was an exception and every case was extreme.  The Synod ended up regularizing what had been rare and exceptional and it became a burden upon our church body that finally was resolved in 2016.

Those who appeal to a non-liturgical face for Lutheranism often cite the oddity in history or the exception along the way when the liturgy was abridged or even invented for the sake of a rather unusual situation.  Then they proceed to suggest that this extreme has become the justification to regularly and uniformly have as a legitimate option the abandonment of our liturgical tradition in favor of a liturgy du jour in which little is ordinary and everything exceptional.  Even Luther approached things differently, offering the Deutsche Messe as an alternative where Latin was no longer feasible or where circumstance required a less elegant option than the Formula Missae.  Luther himself was loathe to offer something to the church lest it become the rule.  So without something, each jurisdiction looked around and worked out something loosely based on Luther's example.  This gave rise to the idea that it did not matter and everything was possible.  Maybe not right away but later on the exception became the rule until the liturgy itself was considered adiaphora and Sunday morning became a free for all (at least for some)

Progressivism insists that extremes are fertile ground for new rules or laws and it shows itself in everything from morality to who communes to who presides to what Lutherans look like on Sunday morning.  Of course, Lutherans are not alone in suffering the government of the church by extreme case but we are not immune from it either.  It is high time we stopped using extreme cases to make ordinary rules and laws.  We are all the poorer for it.