Unformatted text preview: ng social architecture was far more advanced
than in the previous period with a developed central government, a defined geopolitical
entity, a national identity, and a well-developed domestic and international trade
network. The conflict between commercial practice and the court's enforcement policies was
already evident when that case was handed down, for Mason and Carter commented
upon the 'deep torpor' which struck the commercial community in the aftermath of the
judgment.6 Lord Tenterden turned to an extra-legal standard, in effect an appeal to an
expectation of efficiency, which informed his judgment in that case. After World War II,
the cases reveal that society had fully accepted the commercial ethic and there was no
longer any logical reason for the perpetuation of historic proscription regarding curial
recognition of commercial practices which had proved so costly to the commercial realm. and the law of God." See Knight, W. M. S. 1922, "Public Policy in English Law", 38 L.Q.R.
Winfield, P.H., 1929, "Public Policy in the English Common Law", 42 Harv L. Rev 76.
Mason and Carter 1995, p. 694.
Page v Newman (1829) 9 B & C 378 at 381; 109 E.R. 140 at 141. Lord Tenterden's statement in rejecting
the alternative to the prohibition of granting interest on overdue sums of money "That would be productive
of great inconvenience." shows that His Honour was out of touch with the commercial practices, already
firmly entrenched into English society by 1829. In addition, His Honour's judgment manifests one of the 270 T he courts' resort to extra-legal social expectations, in effect curial social policies, c an be
labelled a defensive tactic employed where the alternative reliance upon strict legal
reasoning would not have produced a desired result. It took approximately 160 years between Page v Newman (1829) and the High Court
case of Hungerfords v Walker (1989) for the courts to recognise the changed social
expectations surrounding commercial practice which demanded that the opportunity
costs of overdue sums be recovered, an amazingly similar amount of time to the church's
adoption of the social standards in the period prior to the Medieval Inquisition. The
capitulation of the court in Hungerfords is strikingly comparable to the recognition and
capitulation of the clergy to the surrounding social expectation regarding the punishment
of heretics which influenced the Medieval Inquisition. Reference to social expectations,
or social policies8, is not absent, though, in the intervening period between the Medieval
Inquisition in the 12th century to Lord Tenterden in the 19th century. Winfield takes the position that Bracton,9 in the 13th century, contained quite a number of
allusions to public policy, and that a paradox existed where "public policy pervade[d] the
common law and nobody [was] aware of its existence."10 He alludes that the reason
public policy came to be embedded into the common law mind was because the common
law functioned "when as yet there was not much statute law and practically no case law
at all to summon to the judge's assistance."11 This implies that early judges made very social principles which are examined in this chapter which the courts of the 20th century employed in
resisting another form of opportunity cost, inflation.
In the context of this chapter, the terms "public policy", "social policy" and "social expectations" are used
interchangeably to improve readability.
Henry of Bratton, (1210-1268) On the Laws and Customs of England cited as Bracton.
Winfield 1929, p. 77.
ibid. 271 decisions from a personal perspective o n what was good for the community in which the
court w as sitting, not from an established b ody o f recognised law. Littleton, in the 15 century, described public policy in terms of "inconvenience" or "against reason", which are difficult to define in legal terms.12 Later developments in t 17th century, such as the concept that a contract for an illegal purpose is void as ma prohibitum and therefore unenforceable, appealed to public policy for support and took for granted that policy was a legitimate tool for judges to use. In each of these instan
judges argued that some aspect of the common good would be sacrificed unless the
judgment were handed down with the given features. This was not always the case, and in Egerton v Brownlow,13 in 1853, a special session of the Law Lords and King's justic
nearly put an end to the use of any notions of public policy. In that case Lord Truro
argued that public policy:14
is that principle of the law which holds that no subject can lawfully do that which has a tendency
to be injurious to the public, or against the public good, w hich m a y be termed, as it sometimes has
been, the policy of the law, or public policy in relation to the administration of the law. Lord St. Leonard, in the same case, avoided any definitive exposition of what constitute public policy, instead assuming its existence and use, and approved of prior instances
most notably Lord Nottingham in Duke of Norfolk's Case (1685):
Lord Nottingham .. went further than ever had been gone before, and he did it on grounds of
public policy. H...
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- Three '12
- Common Law, High Court of Australia