Matthew

Dare I suggest that you may be looking at the problem the wrong way up?  At any one time, there will be a considerable number of matters on which any particular legal system can be said to have a well-defined public policy, which could be proved by reference to judicial decisions, to statute, or to clearly demonstrable public attitudes.  Whether there is a coherent overall conception of “public policy” might be a difficult question, but you don’t always need one to make sense of particular references to “public policy” – as Jason says, very often it refers to principles that are perfectly well-established, but only rarely encountered in the particular neck of the woods that the court happens to end up in.  The law’s attitude to parental rights (to use your example) may be perfectly clear, just not often encountered in books and cases on contract and tort.

Steve Hedley

Faculty of Law

University College Cork

9thlevel.ie

private-law-theory.org

-----Original Message-----
From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
Sent: 01 November 2013 15:45
To: obligations@uwo.ca
Subject: Research Help: Definition of Public Policy

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.

Sent from Windows Mail