That’s a good point.
What strikes me is that in the two cases I mentioned, other courts later go on and largely ignore those conclusions, approving the very clauses that were thought to be gross violations of public policy. The result is that we have judges in Newfoundland and Ontario saying that a clause violates public policy, but courts in BC and PEI saying that it doesn’t. The latter cases conform to the precedent.
I agree precedent ought to be discarded when necessary, but so far what I’m seeing is no willingness to engage the precedent. In other words, the courts in question don’t explain why everyone else is wrong. It’s frequently just a “times have changed” argument.
That’s why I find it so arbitrary.
I do appreciate your thoughts, though. As I say, I need to get some handle on it and this has been very helpful.
Sent from Windows Mail
From: Hedley, Steve
Sent: Friday, November 01, 2013 1:04 PM
To: Harrington Matthew P.
Cc: obligations@uwo.ca
I’m sure we can all agree that judges should explain themselves clearly – and particularly, as you suggest, they may need to explain why any supposed policy should be regarded as the law’s policy, as distinct from the judge’s mere personal preference. But I suspect that the cases you are concerned with are ones where blindly following precedent would equally be subjected to criticism; as Holmes famously remarked, many would regard it as poor reasoning if precedent is the only justification for an otherwise dubious ruling, and may think it “still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past”. Or (to put the same point in Sean’s terminology”) precedent too is a “legitimation rhetoric”, and is no more a trump card than is public policy.
So the question should not be, I think, whether the reference to public policy can be criticised – no doubt it can – but whether a decision the other way would be subject to even worse criticism. Some cases have no uncontroversial answers.
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 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<mailto: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<mailto: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