ABSTRACT
The common law doctrine of public policy remains poorly defined. It has been invoked to produce outcomes distinct from what conventional doctrine would require, but no consensus exists as to the purposes it serves, the factors justifying its intervention, or even the manner of its operation. This paper argues that the best understanding of public policy identifies it as delineating the justifiable boundary between spheres of public and private justice.
This paper accounts for the capacity of public policy to override the demands of private justice without detracting from its essentially private character. Using Rawls’ understanding of the institutional framework justifiable in a liberal democracy and distinguishing between the principles of justice appropriately applicable to political and private relationships, this account theorizes public policy as a barrier preventing private derogation from the basic political structure of liberal democracy. Focusing on contract, this paper proposes that public policy operates in circumstances in which the parties to a particular contract have sought judicial enforcement of private obligations, which, if enforced, would substantively alter the allocation of civic entitlements underpinning liberal democratic society.
This paper also offers a complementary account of the precise effect a declaration of repugnance has on contractual relationships, suggesting that courts should be understood as declining to enforce otherwise valid contracts, rather than declaring parties never to have been bound. On this account, public policy simply permits a court to decline requests that would otherwise set the liberal democratic state against itself.
Greg Bowley, The Public Limits of Private Justice: An Account of the Doctrine of Public Policy in Contract, Canadian Bar Review volume 103 no 3 (2025). Published 18 December 2025.
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