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https://en.wikipedia.org/wiki/Public_policy_doctrine

Public policy doctrine

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Conflict of laws and

private international law Preliminaries
Characterisation
Incidental question
Renvoi
Choice of law
Conflict of laws in the United States
Public policy doctrine
Hague Conference
Definitional elements
Jurisdiction
Procedure
Forum non conveniens
Lex causae
Lex fori
Forum shopping
Lis alibi pendens
Connecting factors
Domicile
Lex domicilii
Habitual residence
Nationality
 Lex patriae
Lex loci arbitri
Lex loci rei sitae
Lex loci contractus
Lex loci delicti commissi
Lex loci actus
Lex loci solutionis
Lex loci protectionis
Proper law
Lex loci celebrationis
Choice of law clause
Dépeçage
Forum selection clause
Substantive legal areas
Status
Capacity
Contract
Tort
Marriage
Divorce
Property
Forced heirship
Hague Trust Convention
Enforcement
Enforcement of foreign judgments
Anti-suit injunctions
Revenue rule

Public policy doctrine

In private international law, the public policy doctrine or ordre public (lit. Fr. "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 has suggested that the critical values of any legal
system include impartiality, neutrality, certainty, equality, openness, flexibility, and
growth. This assumes that a state's courts function as dispute resolution systems,
which avoid the violence that often otherwise accompanies private resolution of
disputes. That is, 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.

Contents
[hide]
1 Fundamental principles
1.1 Ignorance of the law is not an excuse
1.2 Sanctity of life
1.3 Doctrine of Evasion
1.4 Children
1.5 Marriage
2 Discussion
3 References
4 External links

Fundamental principles[edit]
Ignorance of the law is not an excuse[edit]
The fundamental policy in the operation of a legal system is that ignorantia juris non
excusat (ignorance of the law is no excuse). It would completely undermine the
enforcement of any law if the person potentially at fault was able to raise as a successful
defence that he or she had not been aware of the particular law. For this reason, all the
main legislatures publish their laws freely whether in hard copy or on the Internet, while
others offer them for sale to the public at affordable prices. Because everyone is entitled
to access the laws as they affect their personal lives, all adults are assumed responsible
enough to research the law before they act. If they fail to do so, they can hardly complain
if their acts prove unlawful, no matter how transiently they may be within the
jurisdiction. The only exception to this rule excuses those of reduced capacity, whether
as infants or through mental illness (for example, see the principle of doli incapax which
raises an irrebuttable presumption in criminal law that an infant is incapable of
committing a crime).
Sanctity of life[edit]
Underpinning most social, moral and religious systems is the policy of sanctity of life
(also culture of life). In UK criminal law, for example, 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] 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 euthanasia, commission and omission by doctors and hospital
authorities resulting in the death of patients has become of increasing significance as
societies debate whether the duty to preserve life outweighs the right of the autonomous
patient to choose death. More contentious are those situations in which the patient is
unable to make the choice personally, e.g. because in a persistent vegetative state or en
ventre sa mere, i.e. a child in the womb.

Doctrine of Evasion[edit]
Similarly, in many branches of law, the Doctrine of Evasion prevents persons, both
natural and artificial, from evading the application of obligations and liabilities already
attaching to them. This represents a practical application of the policy that, as an
outcome of the social contract, all persons owing allegiance to a state should be entitled
to assume that everyone will receive fair and equal treatment before the law, i.e. there
will be no favouritism or preferential treatment to any person by virtue of their 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[edit]
There are policies specific to all the main branches of law. Hence, one of the policies in
family law is parens patriae, i.e. that the state is the default parent for all those children
within its jurisdiction and that, if it is necessary to protect the interests of the child, the
state will usurp the rights of the natural parents and assert its own rights as every child's
legal guardian. Within the EU, the right of the child to be heard in any proceedings is a
fundamental right provided in Article 24 Charter of Fundamental Rights of the European
Union. The views of the child shall be considered on matters which concern him or her in
accordance with age and maturity. It also provides that the child's best interest shall be the
primary consideration in all actions relating to children, whether taken by public
authorities or private institutions.

Marriage[edit]
A policy which overlaps between family law and contract law is 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.

Primary topics
/wiki/Index_of_politics_articles
/wiki/Politics_by_country
/wiki/Politics_of_country_subdivisions
/wiki/Political_economy
/wiki/Political_history
/wiki/Political_history_of_the_world
/wiki/Political_philosophy
Political systems
/wiki/Anarchy
/wiki/City-state
/wiki/Democracy
/wiki/Dictatorship
/wiki/Directorial_system
/wiki/Federacy
/wiki/Feudalism
/wiki/Meritocracy
/wiki/Monarchy
/wiki/Parliamentary_system
/wiki/Presidential_system
/wiki/Republic
/wiki/Semi-parliamentary_system
 /wiki/Semi-presidential_system
/wiki/Theocracy
Academic disciplines
/wiki/Political_science
/wiki/List_of_political_scientists
/wiki/International_relations
/wiki/International_relations_theory
/wiki/Comparative_politics
Public administration
/wiki/Bureaucracy/wiki/Street-level_bureaucracy
/wiki/Adhocracy
Policy
Public policy (doctrine)
Domestic and foreign policy
Civil society
Public interest
Organs of government
/wiki/Separation_of_powers
/wiki/Legislature
/wiki/Executive_(government)
/wiki/Judiciary
/wiki/Election_commission
Related topics
/wiki/Sovereignty
/wiki/Theories_of_political_behavior
/wiki/Political_psychology
/wiki/Biology_and_political_orientation
/wiki/Political_organisation
/wiki/Foreign_electoral_intervention
Subseries

Discussion[edit]
The policies adopted by states have come into being for several reasons. Some are
aspects of the concept of sovereignty and reflect the essence of territoriality. Thus, public
laws which either define the constitution of the state or regulate its powers can only apply
within the boundaries agreed as a part of the process of de jure recognition of statehood
by the international community. Other policies are aspects of the social contract, and they
define and regulate the relationship between a state and those citizens who owe it
allegiance. To that extent, these policies interact with (and sometimes overlap) civil rights
and human rights. A number of these rights are defined at a supranational level and it will
necessary for states to consider the extent to which international principles of law are to
be allowed to influence the operation of law within their territories. Independently of the
work of the international community to produce harmonised principles, the courts in one
state may sometimes be faced with 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 treaty obligations involving
human rights, (e.g. in the UK the Human Rights Act 1998 is now in operation) broader
husband to divorce his wife, but not vice versa, as an aspect of sexual discrimination.
Similarly, it would be possible to question the propriety of polygamous marriages, the
talaq system of divorce which is available in some Islamic states, and Jewish divorce
known as the 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 penal or territorial because
they seek to collect taxes due to another state, e.g. in English Law, if foreign exchange
control legislation is used as "an instrument of oppression", it may be denied
extraterritorial enforcement (Re Helbert Wagg & Co Ltd [1956] Ch 323, 351). Similarly,
otherwise valid contracts may be denied enforcement if to do so would assist an enemy of
the forum state or would damage the political relationship with a friendly state. When
considering questions of status, English courts have held that incapacities imposed on
account of slavery (Somersett's Case [1771] 20 St Tr 1), religion (Re Metcalfe's Trusts
[1864] 2 De G J & S 122), alien nationality (Re Helbert Wagg & Co Ltd [1956] Ch 323 at
pp. 345/46), 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[edit]
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[edit]
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

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This page was last edited on 6 April 2018, at 14:07.