Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’

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.

Ross Grantham and Darryn Jensen, The Proper Role of Policy in Private Law Adjudication, University of Toronto Law Journal, ahead of print. DOI 10.3138/utlj.2017-0069.

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