Private Law Theory

Abstract:
Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call ‘principle’. This article will examine both sides of the debate, initially exploring what is actually meant by ‘principle’ and ‘policy’, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called ‘pluralist’ approach, will be examined.

€

James Plunkett, Principle And Policy In Private Law Reasoning. Cambridge Law Journal / Volume 75 / Issue 02 / July 2016, pp 366-397

First posted 2016-07-06 05:58:39