How can a case of first impression be decided by recourse to strict
and complete legalism?
By analogy?
What of the case where there is no ready analogy? What of the case
where 2 or 3 analogies are equally available? How can 'strict and
complete legalism' lead the judge to 1 and not another - and will it
guide her to the right analogy?

On 11/1/13, Andrew Tettenborn <A.M.Tettenborn@swansea.ac.uk> wrote:
>
>
>
> -------- Original Message --------
> Subject: Re: Research Help: Definition of Public Policy
> Date: Fri, 01 Nov 2013 19:33:33 +0000
> From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
> To: Angela Swan <aswan@airdberlis.com>
> CC: 'Robert Stevens' <robert.stevens@law.ox.ac.uk>, Jason Neyers
> <jneyers@uwo.ca>, "Harrington Matthew P."
> <matthew.p.harrington@umontreal.ca>, "Hedley, Steve" <S.Hedley@ucc.ie>,
> "obligations@uwo.ca" <obligations@uwo.ca>
>
>
>
> Arguably what it was. There was perfectly good authority in both cases
> (Heaven v Pender etc) showing very plausibly that the law had taken a
> wrong turn.
>
> Furthermore, there are other ways of overturning stupid rules than
> invoking so-called "public policy." To say that a rule is out of date,
> or anomalous, or unfair isn't (or shouldn't be) to say that it is
> contrary to public policy. There is an enormous amount to be said for
> limiting public policy to _exceptional_ situations (e.g. illegality or
> human rights violations in connection with contracts or torts; claims by
> parents reflecting the fact that an existing child is regarded as an
> unwanted brat, etc), rather than (effectively) saying that any decision
> that is a Bad Thing is thereby contrary to public policy. There's a nice
> leaf to be taken from across the provincial boundary with Quebec here:
> no self-respecting Francophone would use the equivalent ordre public as
> an excuse for reaching a mould-breaking decision like Donoghue v Stevenson.
>
>
> Andrew
>
>
> On 01/11/13 19:18, Angela Swan wrote:
>>
>> Oh, dear! And the legalistic result in /Donoghue v. Stevenson/ or
>> /Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd/. would have been …?
>>
>> Angela Swan
>>
>> *From:*Robert Stevens [mailto:robert.stevens@law.ox.ac.uk]
>> *Sent:* November-01-13 3:05 PM
>> *To:* Jason Neyers; Harrington Matthew P.; Hedley, Steve
>> *Cc:* obligations@uwo.ca
>> *Subject:* RE: Research Help: Definition of Public Policy
>>
>> "It may be that the Court is thought to be excessively legalistic. I
>> should be sorry to think that it is anything else. There is no other
>> safe guide to judicial decisions in great conflicts than a strict and
>> complete legalism."
>>
>> Sir Owen Dixon/, Address upon taking the oath of office in Sydney as
>> Chief Justice of the High Court of Australia on 21st April, 1952/, in
>> /Jesting Pilate and Other Papers and Addresses/, ed. Woinarski J,
>> Melbourne (1965)
>>
>> Quite so.
>>
>> R
>>
>> ------------------------------------------------------------------------
>>
>> *From:*Jason Neyers [jneyers@uwo.ca]
>> *Sent:* 01 November 2013 18:57
>> *To:* Harrington Matthew P.; Hedley, Steve
>> *Cc:* obligations@uwo.ca <mailto:obligations@uwo.ca>
>> *Subject:* Re: Research Help: Definition of Public Policy
>>
>> On the particular public policy question you raise, I have found the
>> following to be very helpful:
>>
>> E Weinrib, "Constitutional Values and Private Law" (with Lorraine
>> Weinrib), in D. Friedmann and D. Barak Erez, /Human Rights in Private
>> Law/ (2002), 43-72. There are also many interesting other papers in
>> the collection on similar topics.
>>
>> As is the work of my colleague Adam Parachin:
>>
>> "Distinguishing Charity and Politics: The Judicial Thinking Behind the
>> Doctrine of Political Purposes", Vol. 45 Issue 4 /Alberta/ /Law Review
>> /1.
>>
>> Jason Neyers
>> Professor of Law
>> Faculty of Law
>> Western University
>> N6A 3K7
>> (519) 661-2111 x. 88435
>>
>> On 01/11/2013 1:12 PM, Harrington Matthew P. wrote:
>>
>> 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 <mailto: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.
>>
>>
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>> 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.
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>> Steve Hedley
>>
>> Faculty of Law
>>
>> University College Cork
>>
>>
>>
>> 9thlevel.ie<http://9thlevel.ie/> <http://9thlevel.ie/>
>>
>> private-law-theory.org<http://private-law-theory.org/>
>> <http://private-law-theory.org/>
>>
>>
>>
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>>
>>
>>
>> -----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 <mailto: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:
>>
>>
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>>
>> 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.
>>
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>> 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.”
>>
>>
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>> 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?)
>>
>>
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>> 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.
>>
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>> 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.
>>
>>
>>
>>
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>>
>>
>> Nonetheless, I take your point. It’s really helpful and I’m not sure
>> where to go.
>>
>>
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>> Best regards.
>>
>>
>>
>> Matt
>>
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>>
>> -----------------------------------------
>>
>>
>>
>> Matthew P Harrington
>>
>>
>>
>> Professor of Law
>>
>>
>>
>> University of Montreal
>>
>>
>>
>> -----------------------------------------
>>
>>
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>>
>>
>>
>> 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><mailto:obligations@uwo.ca>
>> <mailto:obligations@uwo.ca>
>>
>>
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>>
>> Matthew
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>> 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.
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>> Steve Hedley
>>
>>
>>
>> Faculty of Law
>>
>>
>>
>> University College Cork
>>
>>
>>
>>
>>
>>
>>
>> 9thlevel.ie<http://9thlevel.ie/> <http://9thlevel.ie/>
>>
>>
>>
>> private-law-theory.org<http://private-law-theory.org/>
>> <http://private-law-theory.org/>
>>
>>
>>
>>
>>
>>
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>>
>>
>>
>>
>> -----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><mailto: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.”
>>
>>
>>
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>> 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?
>>
>>
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>> 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.
>>
>>
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>> Regards.
>>
>>
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>> Sent from Windows Mail
>>
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>
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Cellphone 07968-251250 / (int) +44-7968-251250
> Fax 01792-295855 / (int) +44-1792-295855
>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffo^n 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffo^n symudol 07968-251250 / (rhyngwladol) +44-7968-251250
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> ***
>
>
>
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Cellphone 07968-251250 / (int) +44-7968-251250
> Fax 01792-295855 / (int) +44-1792-295855
>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffo^n 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffo^n symudol 07968-251250 / (rhyngwladol) +44-7968-251250
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> ***
>
>
>
>
>