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Unformatted text preview: e was asked, "Where will you stop?" and he said: "I will stop wherever Ifinda
visible inconvenience." Succeeding judges have gone on;... and that clearly shows h o w sound the 12 " And the law, which is the perfection of reason, cannot suffer anything that is inconvenient". Section
97b, C oke, E . 1628, Coke upon Littleton, 1823 reprint, N e w Y ork, G ryphon Books.
(1853) 4 H.L. Cas. 1. Pollock C.B. in this case equated the phrase "against the c o m m o n good" to
"repugnant to the State," u pon which it is easy to conclude that even those judges w h o in times past relied
or referred to public policy and the c o m m o n good, probably did not have a very concise idea of exactly
what these terms meant.
Egerton v Brownlow [1843-1860] All E.R. Rep. 970 at 988. 272 principle of Lord Nottingham was, and how wisely i has been extended. But the judges have had
no difficulty in stopping: and why did they stop? Because they found inconvenience.15 The description of public policy in the court masks the lack of clear legal principle
regarding what subject matter is being considered. In Egerton v Brownlow, the
contentious term in a will giving an estate for life with certain other remainders to a
person if that person were to attain the title of Earl was held to be void as against public
policy, for the tendency was to corrupt the otherwise noble functions of the peerage. No
legal principle was broken in the drafting of the will. The gap was filled by the House of
Lords by reference to the mischief it would cause and, for this reason, was void as
against public policy. Knight revealed that:
[t]he doctrine, concealed under the widest generalization, operates, in fact, because of some
that law, though only where the dominant general consideration is the good of the community t
the supreme law - with, i may be, some special consideration for therightsor interests of
individuals other than those immediately concerned in the matter the subject of suit. It is the
Judge, too, w ho discovers the gap, and, to f l it, enunciates, develops, and applies this doctrine.
il Winfield describes public policy as based in the ecclesiastically influenced natural law
which has lingered within the common law since its inception. This, he describes, was
"the law of reason" taken from the exhortations in St. German's Doctor and Student first
published in 1523. Thus, in Littleton's Tenures "he gives as the ground of the particular
rule which he is stating that adoption of any contrary principle would be 'inconvenient'
or 'against reason'." Winfield asserts that the expressions of Littleton were turned into a
crude doctrine of public policy by Coke, who emphasised the maxim nihil quod est 15 Howard v Duke of Norfolk (1685), 14 Lords Journal, 49 H.L. cited in Egerton v Brownlow [1843-1860]
All E.R. Rep. 970 at 1015.
Knight 1922, p. 208. 273 inconveniens est licitum, indicating preference for the public good over the private
good. From the end of the 19th century and through to the end of the 20th century, the
complexity of reported judgments steadily increased and public policy began to be
described in more articulate, yet more obfuscated ways. Judges unconsciously imposed
individual notions of public policy which introduced predilections in case judgments
which can now be seen in hind sight. 'Public policy', as used in this chapter, is an undefined overriding consideration that society will be detrimentally affected if an act is allowed which, subsequently, introduce
a bias into judicial decisions. Just how society will be detrimentally affected is largely
assumed, rather than justified, and criticism that much of the public policy manifested in
the reported judgments cannot be logically defended is not easy to rebut. Conversely,
from the sitting judge's perspective, avoidance of public policy issues is sometimes quite
difficult. Assumptions are imported into the bench's perspective regarding what is good
for society and how society will be harmed, for instance, if the courts become less
efficient, or produce manifestly inaccurate damages awards, or behave in a way which is plainly uncertain or unpredictable. Public policy in the courts is, subsequently, certainl
fluid and changing standard, incapable of precise definition. Examples of early cases
decided on policy grounds can be found, such as Lord Mansfield's statement that "[n]o
court will lend its aid to a man who founds his cause of action upon an immoral or an 17 "Nothing that is inconvenient is lawful" Black 1990, 1046. This phrase was taken by Pollock C.B. in
Egerton v Brownlow to be authority for the doctrine of public policy.  4 H.L. 1, 140 at 145, cited in
Winfield 1929, p. 83, supported by Black's definition, w ho attributes its frequent use to Lord Coke. 274 illegal act".18 This same principle w a s said to find expression in L ord Eldon's statement that equity will not interven...
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