Public policy doctrine
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Conflict of laws and private international law |
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In private international law, the public policy doctrine or ordre public (French: lit. "public order") concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time. Law regulates behaviour either to reinforce existing social expectations or to encourage constructive change, and laws are most likely to be effective when they are consistent with the most generally accepted societal norms and reflect the collective morality of the society.
In performing this function, Cappalli[
A judge should always consider the underlying policies to determine whether a rule should be applied to a specific factual dispute. If laws are applied too strictly and mechanically, the law cannot keep pace with social innovation. Similarly, if there is an entirely new situation, a return to the policies forming the basic assumptions underpinning potentially relevant rules of law identifies the best guidelines for resolving the immediate dispute. Over time, these policies evolve, becoming more clearly defined and more deeply embedded in the legal system.
Fundamental principles
Ignorance of the law is not an excuse
The fundamental policy in the operation of a legal system is that
Sanctity of life
Underpinning most social, moral and religious systems is the policy of sanctity of life (also
The reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance ... I can therefore see no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld from a murderer.
In refusal of treatment and
Doctrine of evasion
Similarly, in many branches of law, the
Children
There are policies specific to all the main branches of law. Hence, one of the policies in
Marriage
A policy which overlaps between family law and
Discussion
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The policies adopted by states have come into being for several reasons. Some are aspects of the concept of
In conflict cases, no court will apply a "foreign" law if the result of its application would be contrary to public policy. This is problematic because excluding the application of foreign laws would defeat the purpose of conflict of laws by giving automatic preference to the forum court's domestic law. Thus, for the most part, courts are slower to invoke public policy in cases involving a foreign element than when a domestic legal issue is involved. That said, in those countries that have adopted
Less controversial is the exclusion of foreign laws that are
References
- ^ "R v Gotts - 1982". www.lawteacher.net.
Sources
- Cappalli, Richard B. The Disappearance of Legal Method, (1997) 70 Temp. L. Rev. 393.
- Dalton, Clare. An Essay in the Deconstruction of Contract Doctrine, (1985) 94 Yale L.J. 997.
- Goodwin-Gill, Guy, Ordre Public Considered and Developed, (1978) 94 LQR 354.
- Moufang, Rainer. The Concept of Ordre Public and Morality in Patent Law, in Geertrui Van Overwalle (Ed.), Patent Law, Ethics and Biotechnology, Katholieke Universiteit Brussel, Bruxelles, (1998).
- Richardson v. Mellish (2 Bing, 252)
External links
- Courts and the Making of Public Policy Research programme of the Foundation for Law, Justice and Society, Oxford
- Ordre Public Reach of the defence of fraud / public policy / ordre public with regard to Recognition and Enforcement of Judgments