The Proper Role of Policy in Private Law Adjudication

University of Toronto Law Journal, Volume 68 Issue 2, Spring 2018, pp. 187-230

ANU College of Law Research Paper No. 18-3

32 Pages Posted: 18 May 2018

See all articles by Ross B. Grantham

Ross B. Grantham

The University of Queensland - T.C. Beirne School of Law

Darryn Jensen

ANU Law School

Date Written: September 1, 2017

Abstract

The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law.

Keywords: policy, private law, adjudication, principle, coherence

JEL Classification: K10

Suggested Citation

Grantham, Ross B. and Jensen, Darryn, The Proper Role of Policy in Private Law Adjudication (September 1, 2017). University of Toronto Law Journal, Volume 68 Issue 2, Spring 2018, pp. 187-230, ANU College of Law Research Paper No. 18-3, Available at SSRN: https://ssrn.com/abstract=3172484

Ross B. Grantham (Contact Author)

The University of Queensland - T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

Darryn Jensen

ANU Law School ( email )

Canberra, Australian Capital Territory 0200
Australia

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