Chapter 4 Policy

This is a legal question that has to be answered in the context …and it’s a social policy question.

——Paul Levy

The world of law is primarily about legal doctrines，concepts and principles.It is steeped in logic and analysis.However，principles，although vital to law，often have to work in tandem with policy.Sometimes，they have to give way to policy.

What is policy？ It is a set of ideas or plans agreed upon by a group of persons or an organisation.Policy is an important part of the context which the lawmaker has to understand.

There are different types of policy.The two most common are social policy and economic policy.（Another is moral policy，and we discuss this important subject in the next chapter.）

Social policy is concerned with how society looks after the needs and wellbeing of its members.The foremost areas of social policy include safety，housing，education and health.

Economic policy relates to a government’s measures and strategies on the financial，business and employment aspects of a country.Conventionally，there are three branches of economic policy — fiscal policy，monetary policy and “supplyside” policy.

In terms of economics，countries are broadly categorised as capitalist and socialist.Capitalist countries believe in a free market and permit the means of production to be owned by private individuals and companies.In contrast，in a socialist country，the state owns the means of production and subscribes to the equal distribution of wealth.

The social，economic and political policies of a country are closely related and they shift over time.Naturally，the changes in law will be influenced by changes in social，economic and political thinking.

Apart from these categories of policy，there is also moral policy.Whilst considerations of social，economic and political policy may involve questions of morality，the subject of morality is of great importance and deserves separate treatment.We discuss morality in Chapter 5.

There is also a species of policy called legal policy.Legal policy is about legal system considerations of judges as they seek to administer justice.The most prominent example of this is the “floodgates” argument for not imposing legal liability.Basically，if you allow one claimant to succeed，there will be a flood of claims.So if this is undesirable，then do not open the floodgates；do not allow even one plaintiff to succeed in his claim.

There are significant variations in policy inclinations from country to country，reflecting their diverse cultural traditions.For example，whereas one country may emphasise free speech，another may stress the importance of privacy.Likewise，there may be different attitudes towards the right to employment，healthcare or education.And these cultural differences will be reflected in the policies which influence the making of the law.

（It should be noted that the term “public policy” is often used in place of the term “policy”.Broadly speaking，they are interchangeable.）

The relationship between policy and law is a complicated matter.

The three core areas of law — crime，tort and contract — give effect to the social，economic and political policies of the day.Together，they cater to the needs and well-being of the members of society.

Criminal law implements the social policies of safeguarding the members of a community and their rights.Hence，the criminal law should protect the body，property and other rights of a person.Criminal law also implements the government’s policies as it regulates societies and business.Wrongs against society and against the state or the state’s policies are also rectified or remedied.

Tort law also responds to the policies of the day.In the tort of negligence，the most prominent of all torts，there is a three-stage test for whether there is a duty to take care （see Chapter 19）.This test requires the court to consider whether，as a matter of policy，there should be such a duty.The economic torts，such as inducing breach of contract and conspiracy，are influenced by the economic ideas of desirable competition.Defamation law balances one person’s right to his reputation against another’s freedom to express as well as the listener’s right to know.

Contract law sets its foundations on the basic economic subscriptions of the community or country.Classical contract law theory believes in the importance of a free market and respects contractual relationships entered into by people who have the right and freedom to choose.Hence，the law should interfere as little as possible.But the law also responds to changes in the underlying economic realities，such as the advent of standard form contracts and the rise of monopolies（see Chapter 7）.

Law is also used to implement major changes in policy.For example，when the UK made the radical decision in the mid-twentieth century to provide everyone with free，good quality medical treatment，legislation was introduced in the form of the National Health Service Act.

Likewise，every year，announcements on changes to tax rates，deductibles and incentives are followed by amendments to the relevant tax statutes.

Similarly，if more attention should be given to the matter of health and safety at work，then legislation or enhanced legislation will be brought to pass.Indeed，in the past two decades，many countries have strengthened their laws to raise the level of workplace protection.

While policy obviously shapes legislation，the exact relationship between policy and case law is far from clear.The perception of judges is not uniform or consistent.While some judges regard policy as an “unruly horse”’ and hence，best left to parliament，others believe they can and should consider policy as they decide on the legal outcome.Further，where the matter involves substantial controversy，it is thought that parliament，being elected by the people，is the more appropriate body to decide.There is no clear delineation as to when policy is a matter best left to parliament （see Chapter 23）.