Andrew also wrote a more general piece: A Robertson "Constraints on Policy Based Reasoning in Private Law" in A Robertson & TH Wu (eds) The Goals of Private Law (Hart Oxford 2009) 261

I'm curious to know what level of court these examples are from. If it's just random madness from a low level judge, so be it. More concerning if it's appellate level. More generally though, we can all agree as Steve says that cases should be analysed properly. Some of these cases are going to be just wrong frankly, as might cases that precedent says we should follow. But if it's wrong - at least at appellate level - we don't have to follow it necessarily. The question is whether the case result and reasoning fit with other case law (which in some cases it won’t) or whether that reasoning is justified - at least that's the question if you're as Dworkinian in general bent as I am. So the one sentence wills case must be wrong, because it doesn't fit, and even if you could say "the public policy of Canada" was against discrimination, the implication is mandatory state control on who we give birthday presents to lest we decide x has converted to Catholicism and so no birthday present, which I would think really does violate public policy!

Rather than just leave you in the somewhat unsatisfactory (to you I suspect) position of concluding that courts should all do more proper thinking and being left in a wilderness of single instances, I think what you want is a sense of how courts should use policy. Now I have sympathy with Sean - but only some - because there is a clear difference in my mind between a rights (principle) based argument that purports to apply to everyone across the piece, and a goal based argument that purports to say eg small businesses need to be treated more paternalistically because they behave empirically more like consumers than like larger business.

Then it seems to be a question of weight: As Dworkin says principles have weight, and can be outweighed (by goals or other principles) in different circumstances. Something of course Allan Beever flatly denies in the UQLJ if I remember aright.

Duncan

>-----Original Message-----
>From: Thomas, Sean R. (Dr.) [mailto:srt10@leicester.ac.uk]
>Sent: Friday, November 01, 2013 4:48 PM
>To: 'Harrington Matthew P.'; Hedley, Steve
>Cc: obligations@uwo.ca
>Subject: RE: Research Help: Definition of Public Policy
>
>Interestingly enough, I’m looking (askew) at this general issue vis-à-vis
>commercial law. Some materials that come to mind (ie cut and pasted from
>my current draft) are John Bell, Policy Arguments in Judicial Decisions
>(Clarendon Press 1983); the symposium ‘The Role of Policy in Private Law
>Adjudication’ (2006) 25 U Queensland LJ 213-347; Graham Hughes, ‘Rules,
>Policy and Decision Making’ (1967-68) 77 Yale L J 411; A Robertson, ‘Policy-
>based reasoning in duty of care cases’ (2013) 33 LS 119, and of course
>Dworkin's stuff and the responses thereto.
>
>Personally, I agree with your problem Matthew: the use of 'policy' (and, to my
>mind, the use of 'principle' also) is merely that of a legitimation rhetoric. This
>is why you don't see any explanation of the policy at hand, for to attempt to
>explain it would be pointing out that law's emperor is naked.
>
>Sean.
>
>Dr Sean Thomas
>Senior Lecturer in Commercial Law
>LLM Course Director (Campus)
>
>School of Law
>University of Leicester
>University Road
>Leicester
>LE1 7RH
>+44 (0) 116 252 2332
>
>
>-----Original Message-----
>From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
>Sent: 01 November 2013 16:42
>To: Hedley, Steve
>Cc: obligations@uwo.ca
>Subject: Re: Research Help: Definition of Public Policy
>
>Thanks very much. I need to think about it more. But, here’s something of
>where I’m coming from:
>
>I’m working in trusts cases right now. I see all sorts of restrictive clauses being
>discarded by courts on the grounds that the clause violates public policy. So,
>for example, we have a court in Newfoundland that takes a clause in a will
>that requires the beneficiary to be an RC or CofE. The clause is not uncertain.
>Yet, the court --- in a one-sentence opinion --- voids the clause because “it
>violates the public policy of Canada.” No explanation as to what, exactly the
>public policy of Canada is.
>
>Now this is an egregious example, but there are others. Courts that destroy
>provisions because they “violate Ontario public policy that all religions ought to
>be treated equally” or that toss a provision because it violates the public
>policy ”in favour of protecting marriage.”
>
>In almost every one of these cases, other than stating the public policy in
>broad form, we get no analysis of what the public policy actually is. (For
>example, if Ontario’s public policy is really “in favour of protecting marriage,”
>why are there divorce laws? Or, if Ontario’s public policy is that all religions are
>to be treated equally, then why do we have government-supported
>denominational schools?)
>
>None of these courts actually say: The public policy is this. Here are its origins.
>Here are its outlines. Here is why the clause violates it.
>
>My hostility is that it seems all so very arbitrary, to the point that public policy
>is merely makeweight to hide personal preference. It’s a way of saying, “I
>don’t like this. I don’t have real concrete reasons, so I’ll just say it violates
>policy.” To my mind, it creates a results-based jurisprudence. It’s difficult to
>challenge or understand the opinions because one never gets the reasoning
>behind it.
>
>I realise I sound a bit like a third-year student unhappy that no one is giving
>me a clear rule, but in the area I’m working, I’m seeing two centuries of
>precedent tossed with just the vaguest explanation.
>
>Nonetheless, I take your point. It’s really helpful and I’m not sure where to go.
>
>Best regards.
>Matt
>
>
>-----------------------------------------
>Matthew P Harrington
>Professor of Law
>University of Montreal
>-----------------------------------------
>
>Sent from Windows Mail
>
>From: Hedley, Steve
>Sent: ‎Friday‎, ‎November‎ ‎01‎, ‎2013 ‎12‎:‎26‎ ‎PM
>To: Harrington Matthew P.
>Cc: obligations@uwo.ca
>
>
>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<http://9thlevel.ie/>
>private-law-theory.org<http://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
>