Public policy doctrine

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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[

citizens have to be encouraged to use the court system to resolve their disputes. The more certain and predictable the outcome of a court action, the less incentive there is to go to court where a loss is probable. But certainty must be subject to the needs of individual justice, hence the development of equity
.

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

doli incapax which raises an irrebuttable presumption in criminal law
that an infant is incapable of committing a crime).

Sanctity of life

Underpinning most social, moral and religious systems is the policy of sanctity of life (also

duress is not allowed as a defence to murder because no threat is supposed to overcome a person's moral aversion to taking the life of another. Lord Jauncy in R v Gotts [1992][1]
2 AC 412 stated:

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

, i.e. a child in the womb.

Doctrine of evasion

Similarly, in many branches of law, the

rank or status within society. As such, this is an exception to the policy in the law of contract which usually allows the parties autonomy to enter into whatever agreement they want and which might otherwise be taken to permit the parties to exclude the normal operation of the law as between themselves (see the policy of freedom of contract
).

Children

There are policies specific to all the main branches of law. Hence, one of the policies in

best interest
shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions.

Marriage

A policy which overlaps between family law and

favor matrimonii
which requires that any marriage entered into with a genuine commitment should be held valid unless there is some good reason to the contrary, matching contract law, where the preference is always to give effect to the genuine expectation of the parties.

Discussion

The policies adopted by states have come into being for several reasons. Some are aspects of the concept of

lawsuits which either seek to evade the operation of foreign laws through forum shopping or seek the enforcement of "foreign" laws. This is becoming increasingly common as people now move with reasonable freedom between states and international trade routinely services markets in different states. Such lawsuits will not be troublesome if the "foreign" law is the same as the forum law. But serious difficulties will arise if the application of the "foreign" law would produce a different result. These issues are resolved under the systems of law known as "conflict of laws
".

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

get, but it is likely that the courts would be cautious to avoid any implication that they were discriminating against religions. Equally difficult are the family laws which regulate incestuous relationships and capacity. For example, it is probable that one state should not be too quick to condemn another because it allows a marriage
between an uncle and a niece, or allows a marriage with a girl of 13 (e.g. as in Northern Nigeria), particularly if the parties are not proposing residence in the forum state.

Less controversial is the exclusion of foreign laws that are

race (Oppenheimer v Cattermole [1976] A C 249 at pp. 265, 276/78, 282/83), divorce (Scott v Attorney-General [1886] 11 PD 128), physical incompetence (Re Langley's Settlement Trusts [1962] Ch 541 at pp. 556/57) and prodigality (Worms v De Valdor [1880] 49L J Ch. 261 and Re Selot's Trusts [1902] 1 Ch. 488) will be disregarded. Policy is also a key component to the process for the enforcement of foreign judgments
.

References

  1. ^ "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