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Encyclopedia > Public policy (law)

Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. So, for example, one of the policies in Family Law is parens patriae, i.e. that the state is the default parent for all those children within its jurisdiction and that, if it is necessary to protect the interests of the child, the state will usurp the rights of the natural parents and assert its own rights as every child's legal guardian. Similarly, in Law of Contract, the autonomy of the parties to enter into whatever agreement they want is protected under the policy of freedom of contract. For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... Family law is an area of the law that deals with family-related issues and domestic relations including, but not limited to marriage, civil unions, divorce, spousal abuse, child custody and visitation, property, alimony, and child support awards, as well as child abuse issues, and adoption. ... Parenting comprises all the tasks involved in raising a child to an independent adult. ... A male Caucasian toddler child A child (plural: children) is a young human. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ... A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. ... A contract is any legally-enforceable promise or set of promises made by one party to another and, as such, reflects the policies represented by freedom of contract. ... Freedom of contract is the key public policy that underpins the law of contract and justifies a legally enforceable system of bargaining as a benefit to society. ...


Parens patriae

In most jurisdictions, this appears in the principle that makes the protection of the best interests of any child the first and single most important concern of the courts. For example, in any proceedings affecting the validity of a marriage, the children will not be parties in their own right, nor will they be parties to any agreement that the spouses may make. In these proceedings, the courts will often be invited to accept and enforce any agreement between a husband and wife regarding custody of their children. This will usually be done so long as the agreement is seen to be in the best interests and welfare of the children. In some situations, the parties may have submitted their dispute to formal arbitration proceedings. Such proceedings whether judicial or quasi-judicial cannot displace the supervisory power of the court in the exercise of its parens patriae function to the child. To the extent that such an award conflicts with the best interests of the child, the courts will treat it as void in respect of the child, even though it might be binding on the parents. The test of the best interests of the child can always be the basis of a challenge by a parent, grandparent, an interested relative, or the child acting through a friend. Thus, for example, the spouses might already have been through a religious form of divorce before the Beth Din, the Jewish religious court, which included provision for the children. Even thought there might appear to be a grant of custody in absolute terms by this court, public policy always requires that it can be reviewed by a secular court and, if the state court is of the view that it is not in the best interests of the child, it will be set aside (see Stanley G. v. Eileen G. New York Law Journal, 10-13-94, P.22, Col.6, Sup. Ct., NY Co.). Marriage is a relationship and bond between individuals (termed spouses -- a male spouse is a husband and a female spouse, a wife) that plays a key role in the definition of many families. ... Child custody and guardianship are the legal terms used to describe the legal and practical relationship between a parent and child, including e. ...


Discussion

The policies adopted by states have come into being for a number of reasons. Some are aspects of the concept of sovereignty and reflect the essence of territoriality. Thus, public laws which either define the constitution of the state or regulate its powers can only apply within the boundaries agreed as a part of the process of de jure recognition of statehood by the international community. Other policies are aspects of the social contract, and they define and regulate the relationship between a state and those citizens who owe it allegiance. To that extent, these policies interact with (and sometimes overlap) civil rights and human rights. A number of these rights are defined at a supranational level and it will necessary for states to consider the extent to which international principles of law are to be allowed to influence the operation of law within their own territories. Independently of the work of the international community to produce harmonised principles, the courts in one state may sometimes be faced with lawsuits which seek the enforcement of "foreign" laws. This is becoming increasingly common as people now move with reasonable freedom between states and international trade routinely services markets in many different states. Such lawsuits will not be troublesome if the "foreign" law is the same as the forum law. But serious difficulties will arise if the application of the "foreign" law would produce a different result. These "conflicts are resolved under the systems of law known as Conflict of Laws. Sovereignty is the exclusive right to exercise supreme authority over a geographic region, group of people, or oneself. ... Public law is the area of the law governing the relationship between individuals (citizens, companies) and the state. ... For political policies of the same name see Bob Raes Social Contract (Ontario) and Harold Wilsons Social Contract (Britain) Social contract is a phrase used in philosophy, political science, and sociology to denote a real or hypothetical agreement within a state regarding the rights and responsibilities of the... Citizenship is membership in a political community (originally a city but now a state), and carries with it rights to political participation; a person having such membership is a citizen. ... Allegiance is the duty which some think a subject or a citizen owes to the state or to the sovereign of the state to which some think he belongs. ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... A court is an official, public forum which a public power establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... Private international law, international private law, or conflict of laws is that branch of public law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied. ...


Public policy in the context of Conflict of Laws

The general rule is that all higher courts have an "inherent jurisdiction" or "residual discretion" to apply the public policies of their state to clarify or more properly interpret the letter of their domestic laws and procedural rules. In Conflict cases, no court will apply a "foreign" law if the result of its application would be contrary to public policy. This is problematic because excluding the application of foreign laws would defeat the purpose of Conflict of Laws by giving automatic preference to the forum court's domestic law. Thus, for the most part, courts are slower to invoke public policy in cases involving a foreign element than when a domestic legal issue is involved. That said, in those countries that have adopted Treaty and Convention obligations involving human rights, (e.g. in the U.K. the Human Rights Act 1998 is now in operation) broader concepts of public policy may now apply. Thus, courts may have to consider the "justice" implicit in a law that allows a husband to divorce his wife, but not vice versa as an aspect of sexual discrimination. Similarly, it would be possible to question the propriety of polygamous marriages, the talaq system of divorce which is available in some Islamic states, and Jewish divorce known as the get, but it is likely that the courts would be cautious to avoid any implication that they were discriminating against religions. Equally difficult are the Family Laws which regulate incestuous relationships and capacity. For example, it is probable that one state should not be too quick to condemn another because it allows a marriage between an uncle and a niece, or allows a marriage with a girl of 13 (e.g. as in Northern Nigeria), particularly if the parties are not proposing residence in the forum state. A treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. ... Convention has at least two separate and very distinct meanings. ... Human rights are rights which some hold to be inalienable and belonging to all humans. ... The Human Rights Act 1998 is a United Kingdom Act of Parliament which received Royal Assent on November 9, 1998, and came into force on October 1, 2000. ... Sexism is discrimination between people based on their Sex rather than their individual merits. ... The term polygamy (literally much marriage in late Greek) is used in related ways in social anthropology and sociobiology. ... This article needs to be cleaned up to conform to a higher standard of quality. ... Judaism considers marriage to be the ideal state of existence; a man without a wife, or a woman without a husband, are considered incomplete. ... Incest is the sexual activity or marriage between close family members. ... Capacity is a legal term that refers to the ability of persons to make certain binding dispositions of their rights, such as entering into contracts, making gifts, or writing a valid will. ...


Less controversial is the exclusion of foreign laws that are penal or territorial because they seek to collect taxes due to another state, e.g. in English Law, if foreign exchange control legislation is used as "an instrument of oppression", it may be denied extraterritorial enforcement (Re Helbert Wagg & Co Ltd [1956] Ch 323, 351). Similarly, otherwise valid contracts may be denied enforcement if to do so would assist an enemy of the forum state or would damage the political relationship with a friendly state. When considering questions of status, English courts have held that incapacities imposed on account of slavery (Somersett's Case [1771] 20 St Tr 1), religion (Re Metcalf's Trusts [1864] 2 De G J & S 122), alien nationality (Re Helbert Wagg & Co Ltd [1956] Ch 323 at pp.345/46), race (Oppenheimer v Cattermole [1976] A C 249 at pp.265, 276/78, 282/83), divorce (Scott v Att-Gen [1886] 11 P D 128), physical incompetence (Re Langley's Settlement [1962] Ch 541 at pp.556/57) and prodigality (Worms v De Valdor [1880] 49L J Ch. 261 and Re Selot's Trusts [1902] 1 Ch. 488) will be disregarded. In the most general sense, penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation, as opposed to civil law that seeks to redress private wrongs. ... English law, the law of England and Wales (but not Scotland and Northern Ireland), also known generally as the common law (as opposed to civil law), was exported to Commonwealth countries while the British Empire was established and maintained, and persisted after the British withdrew or were expelled, to form... A monument celebrating the emancipation of slaves in the British Empire in 1834, erected in Victoria Tower Gardens, Millbank, Westminster, London Look up Slavery in Wiktionary, the free dictionary Enslaved redirects here. ... Nationality is, in English usage, a legal relationship existing between a person and a state. ... A race is a population of humans distinguished in some way from other humans. ...


  Results from FactBites:
 
Public policy (law) - Wikipedia, the free encyclopedia (1833 words)
Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state.
Law regulates behaviour either to reinforce existing social expectations or to encourage constructive change, and laws are most likely to be effective when they are consistent with the most generally accepted societal norms and reflect the collective morality of society.
Public policy in the context of Conflict of Laws
Public policy - Wikipedia, the free encyclopedia (403 words)
Public policy is expressed in the body of laws, regulations, decisions and actions of government.
Policy analysis may be used to formulate public policy and to evaluate its effectiveness.
Guy Peters: "Stated most simply, public policy is the sum of government activities, whether acting directly or through agents, as it has an influence on the life of citizens".
  More results at FactBites »

 
 

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