Public policy (law)
Overview
In private international law
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

, the public policy doctrine or ordre public 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
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

 together: values that vary in different culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...

s and change over time. Law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 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
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

 of the society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

.

In performing this function, Cappalli has suggested that the critical values of any legal system include impartiality, neutrality, certainty, equality, openness, flexibility, and growth.
Encyclopedia
In private international law
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

, the public policy doctrine or ordre public 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
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

 together: values that vary in different culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...

s and change over time. Law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 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
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

 of the society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

.

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
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...

 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
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

 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
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...

, hence the development of equity.

A judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 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

The fundamental policy in the operation of a legal system is that ignorantia juris non excusat
Ignorantia juris non excusat
Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...

(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 legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

s publish their laws freely whether in hard copy or on the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...

, 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
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

. The only exception to this rule excuses those of reduced capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...

, whether as infants
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...

 or through mental illness (for example, see the principle of doli incapax which raises an irrebuttable presumption in criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 that an infant is incapable of committing a crime).

Underpinning most social, moral and religious systems is the policy of sanctity of life (also culture of life
Culture of life
The phrase "culture of life" is a term used in discussion of moral theology, especially of the Catholic Church. Its proponents describe it as a way of life based upon the theological truth that human life at all stages from conception through natural death is sacred...

). In UK criminal law, for example, duress
Duress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...

 is not allowed as a defence to murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

 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
Euthanasia
Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....

, commission and omission by doctor
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...

s and hospital
Hospital
A hospital is a health care institution providing patient treatment by specialized staff and equipment. Hospitals often, but not always, provide for inpatient care or longer-term patient stays....

 authorities resulting in the death of patient
Patient
A patient is any recipient of healthcare services. The patient is most often ill or injured and in need of treatment by a physician, advanced practice registered nurse, veterinarian, or other health care provider....

s 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
Persistent vegetative state
A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state , the patient is...

 or en ventre sa mere
En ventre sa mere
The French phrase en ventre sa mere refers to a fetus in utero. It is commonly used in legal English.A child which is still "en ventre sa mere" is accepted to be a minor, provided it is subsequently born alive....

, i.e. a child in gestation
Gestation
Gestation is the carrying of an embryo or fetus inside a female viviparous animal. Mammals during pregnancy can have one or more gestations at the same time ....

.

Similarly, in many branches of law, the Doctrine of Evasion
Evasion (law)
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...

 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
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...

, all persons owing allegiance
Allegiance
An allegiance is a duty of fidelity said to be owed by a subject or a citizen to his/her state or sovereign.-Etymology:From Middle English ligeaunce . The al- prefix was probably added through confusion with another legal term, allegeance, an "allegation"...

 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
Social status
In sociology or anthropology, social status is the honor or prestige attached to one's position in society . It may also refer to a rank or position that one holds in a group, for example son or daughter, playmate, pupil, etc....

 within society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...

. As such, this is an exception to the policy in the Law of Contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

 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
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...

).

There are policies specific to all the main branches of law. Hence, one of the policies in family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...

 is parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...

, i.e. that the state is the default parent
Parent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...

 for all those child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...

ren within its jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 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
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...

. 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
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...

. The views of the child shall be considered on matters which concern him in accordance with his 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.

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.

Discussion

The policies adopted by states have come into being for several reasons. Some are aspects of the concept of sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

 and reflect the essence of territoriality. Thus, public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...

s which either define the constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 of the state or regulate its powers can only apply within the boundaries agreed as a part of the process of de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

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
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

 and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

. 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 court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

s in one state may sometimes be faced with lawsuits which either seek to evade the operation of foreign laws through forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...

 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
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...

".

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
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...

 and Convention obligations involving human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

, (e.g. in the UK the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

 is now in operation) broader concepts of public policy may now apply. Thus, courts may have to consider the "justice" implicit in a law that allows a 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
Polygamy
Polygamy is a marriage which includes more than two partners...

 marriages, the talaq system of divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...

 which is available in some Islamic states, and Jewish divorce known as the get
Get (conflict)
A get or gett is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din , a rabbinical court...

, 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
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...

 and capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...

. For example, it is probable that one state should not be too quick to condemn another because it allows a marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...

 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
Penal law
In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs...

 or territorial because they seek to collect taxes due to another state, e.g. in English Law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

, 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
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...

, English courts have held that incapacities imposed on account of slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...

 (Somersett's Case [1771] 20 St Tr 1), religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...

 (Re Metcalf's Trusts [1864] 2 De G J & S 122), alien nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....

 (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 Att-Gen [1886] 11 P D 128), physical incompetence (Re Langley's Settlement [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
Enforcement of foreign judgments
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction...

.

External links

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