what is the policy consideration behind the relevant rule?
‘“Policy”’ has become a hideously inexact word in legal discourse' (Neil MacCormick, Legal Reasoning and Legal Theory (1978)). In this respect, ‘policy’ is not unlike ‘values’. [ Each term is used from time to time in an all-embracing sense so as to include the other. The expression ‘policy considerations’ is generally reserved in the law for arguments or factors of a non-ethical kind, ‘values’
being a term used often to denote ethical values, though its use is by no means always so confined.
Policy considerations may become relevant to the making of a judicial decision when the decision cannot be made by reference to established rules, whether grounded in precedent or even in statute. The Court will then consider the values and policy arguments that are relevant to the articulation of the potential rule (or principle). The Court must make an evaluation of them as a preliminary to articulating the rule to be applied in the instant case. The rule will have an application that extends beyond the parties to the case. Just how far it will extend depends upon its terms, its nature, and subject matter.
In this context, policy arguments come into play as the rule to be adopted is shaped and evaluated by reference to its effect in producing a desirable state of affairs. A policy argument is not used to reach a decision in a particular case dissociated from the general rule to be applied, except in cases where the Court is exercising a statutory judicial discretion requiring the Court to take into account certain policy considerations. Even in such a case, a court will endeavour to deal with them in a principled way.
As United States Supreme Court Justice Oliver Wendell Holmes observed in 1881, ‘every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy’. In this passage, Holmes was equating ‘public policy’ to ‘public interest’. He was not referring to public policy in its technical sense—for example, as a ground for rejecting evidence (Ridgeway v The Queen (1995)) or for invalidating contracts. ]
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