You might want to look at:
Waddams,
Principles and Policy in Contract Law: Competing or
Complementary Perspectives? (Cambridge University Press)
Weinrib, "
Private Law and Public Right", (2011) 61
UTLJ
191-211
I think that it should be kept in mind that modern courts
sometimes use "public policy" as a shorthand for some decision
that relies on a principle that is different than the main one
associated with that particular area or for a situation where
decision-making is "hard". For example, if you think that
contract law is only promissory then the rules related to the
limited enforcement of penalty clauses might be described as
policy-based; similarly if you think that duty in torts revolves
around foreseeabillity then rules limiting duties (even if
jurisprudential in nature, such as are there property rights
involved?) might be described as policy-based.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435
On 01/11/2013 11:43 AM, Harrington Matthew P. wrote:
I hope list members won’t mind my using the list in this way, but I’m in a bit of a quandary. I’m looking into a particular problem in which courts use “public policy” to overturn long-standing rules. In the particular area in which I’m working, the cases are completely vague as to what they mean by public policy or even what the precise public policy at issue is. The series of cases just says, “these provisions violate public policy.” I'm finding things like broad statements of a “public policy in favour of parental rights” or “a public policy of equality.”
I’m looking for some detailed, in-depth or even moderately coherent discussion of the theory of public policy. How do or should courts define it? Are there limits? If so, what are they?
So far, I view public policy as an excuse for arbitrariness. I’m hoping to be convinced otherwise. So, what I’m really wanting to know is whether there are any jurisprudential studies or discussions out there that would be helpful.
Regards.
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