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Policy and principle and the character of private law
According to some commentators, there is a distinction, of fundamental importance for legal reasoning in the common law and for the general character of private law, between arguments of policy and arguments of principle. The distinction is particularly associated with Dworkin, but the same or a similar distinction is found in the corrective justice literature.[1] Roughly speaking, arguments of principle are understood to be concerned with interpersonal justice, or the protection of the rights or interests of individuals inter se, whereas arguments of policy are understood to be concerned with distributive or social justice, or justice in the distribution of benefits and harms across the society, or a particular aspect of this, namely the promotion of the public interest or the interest of a section of the public. Other commentators doubt whether there is any significance to this distinction in common law reasoning or in private law, or even whether such a distinction can be maintained at all.[2]
[1] RM Dworkin, Taking Rights Seriously (Duckworth 1977) 22–28, 90–100, 294-330. Jules Coleman, The Practice of Principle (OUP 2001) 13-24; Ernest J Weinrib, Corrective Justice (OUP 2012) ch 2 (discussing ‘two notions of policy’); Allan Beever, Rediscovering the Law of Negligence (Hart Publishing 2009) ch 1; Robert Stevens, Torts and Rights (OUP 2007) ch 14; AJE Jaffey, The Duty of Care (Dartmouth 1992) 13-21. See also William Lucy, The Philosophy of Private Law (Clarendon Law Series, OUP 2006); Darryn Jensen, ‘Theories, Principles, Policies and Common Law Adjudication’ (2011) 36 Australian Journal of Legal Philosophy 34; D Kyritsis, ‘Principles, Policies and the Power of Courts’ (2007) 20 Canadian Journal of Law and Jurisprudence 379; Ross Grantham & Darryn Jensen, ‘The proper role of policy in private law adjudication’ (2018) 68 University of Toronto Law Journal 187; Peter Cane, ‘Tort Law as Regulation’ (2002) 31 Common Law World Review 305; James Plunkett, ‘Principle and policy in private law reasoning’ (2016) 75 Cambridge Law Journal 366.
[2] This is the implication of the standard approach to the economic analysis of law, considered below. See also, for example, Jane Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Australian Bar Review 135; Jane Stapleton, ‘Duty of Care Factors: a Selection from the Judicial Menus’, in Peter Cane & Jane Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (OUP 1998); Jane Stapleton, ‘Controlling the Future of the Common Law by Restatement’ in M Stuart Madden (ed), Exploring Tort Law (CUP 2005); S Waddams, Principle and Policy in Contract Law (CUP 2011); John Bell, Policy Arguments in Judicial Decisions (Clarendon Press 1983). See also, in the philosophical literature on Dworkin, N MacCormick, Legal Reasoning and Legal Theory (OUP 1978) 263; Andrei Marmor, Philosophy of Law (Princeton University Press 2011) 89-92; Kent Greenawalt, ‘Policy, Rights, and Judicial Process’ in M Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (Duckworth 1984); Brian Leiter, ‘The End of Empire: Dworkin and Jurisprudence in the 21st Century’ (2004) 36 Rutgers Law Journal 165.
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Jurisprudence (2020) In PressVersion
- AM (Accepted Manuscript)
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Jurisprudence: an international journal of legal and political thoughtPublisher
Taylor & Francis (Routledge)issn
2040-3313Acceptance date
2020-04-23Copyright date
2020Publisher version
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