From be illegal, it must be illegal

From thenineteenth century, Anglo-American courts referred to the term public policy ina way which is comparable to that invoked nowadays. One the one hand, theyrefused to enforce contracts that were contrary to public policy “in thatthey injure the public welfare or interests, or are contrary to public decencysound policy and good morals”. On the other, and more importantly, theyadmitted the vagueness of the term public policy.

In this regard, in anoften-quoted case either by English and American courts, Lord Burrough statedthat:”If it beillegal, it must be illegal either on the ground that it is against publicpolicy, or against some particular law. I, for one, protest … againstarguing too strongly upon public policy; it is a very unruly horse, and whenonce you get astride it you never know where it will carry you. It may lead youfrom the sound law.

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It is never argued at all but when other points fail”.from thenineteenth century, Anglo-American courts have not tried to define the concept ofpublic policy. For instance, English judges believed that considerations basedon public policy rested either on the freedom of contract or on the protectionof the interest of the community. In the United States, although theRestatement (Second) of Contracts makes mention of the term public policy, itavoids the task to define it.It is so naturalthere are efforts to define “Public Policy” In England, for example, it wasdescribed as “a principle of judicial legislation or interpretationfounded on the current needs of the community”. In the United States, thetreatise Corpus Juris Secundum precisely states that “contracts contraryto public policy, that is, these which tend to be injurious to the public oragainst the public good, are illegal and void, even though actual injury doesnot result therefrom”. These attempts reveal again that the term publicpolicy is a vague and malleable expression which refers to both legal andextra-legal elements.2-2-2.

Specialties2-2-2-1.Legal elementThe legal elementof public policy is based on the function itself of its doctrine. The essentialfunction of the latter, in the common law, is to bring “into judicialconsideration the broader social interest of the public at large”.Anglo-American courts therefore created rules of public policy and any contractthat contravenes these rules is unenforceable. Therefore, the legal element isclearly evidenced in the effects of illegality.

The generalcommon law principle is indeed the non-enforcement of a contract injurious tothe public or against the public good on grounds of public policy. This refusalfinds its roots in the early English case Holman v Johnson, the classicauthority of the doctrine of illegality, when Lord Mansfield said:”Theprinciple of public policy is this: ex dolo malo non oritur actio. No courtwill lend its aid to a man who founds his cause of action upon an immoral or anillegal act. If, from the plaintiff’s own stating or otherwise, the cause ofaction appears to arise ex turpi causâ1, or the transgression of a positive lawof this country, there the court says he has no right to be assisted”.


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