Are broader values like 'the importance of parental rights' (to borrow
an example that Matthew referred to) to be disregarded in determining
what 'justice' requires in the individual case then?
If not, are you not suspiciously close to public policy by the back door?
Forgive me, perhaps I'm missing an obvious distinction?
On 11/1/13, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:
> By reference to what justice requires.
> Similarly, my answer to Steve's question is that it is justice, not the
> posited law, that is like love.
> Some of course do not believe in love either.
>
> Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
>
>
> 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 To say that a rule is out of date,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.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 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/> <
http://9thlevel.ie/>
>>>
>>> private-law-theory.org<
http://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 <
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:
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 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><
mailto: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/> <
http://9thlevel.ie/>
>>>
>>>
>>>
>>> private-law-theory.org<
http://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><
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.”
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> 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
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>
>> --
>>
>>
>> *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)
>>
>>
>>
>>
>>
>>
>> ***
>>
>>
>>
>>
>>
>