Posted by jay p rutledge on May 31, 1997 at 17:40:20:
In Reply to: Law vs "Public Policy" as "authority" posted by Reed on May 25, 1997 at 02:06:44:
: I am confused about "Public Policy" as legal authority.
: I have read that since 1939 the Supreme Court has been
: ruling on Public Policy instead of law and the constitution.
: 1) How did "Public Policy" ever acquire any power or authority?
: 2) What is "Public Policy"? Is that where the health and
: welfare of "general persons" is more important than the health
: and well-fare of a(ny) natural person?
RE: Public Policy
There is this entry for the term in Bouvier's Law Dictionary (1856 edition), purportedly the only legal dictionary ever approved by Congress.
POLICY, PUBLIC. By public policy is meant that which the law encourages for
the promotion of the public good.
2. That which is against public policy is generally unlawful. For
example, to restrain an individual from marrying, or from engaging in
business, when the restraint is general, in the first case, to all persons,
and, in the second, to all trades, business, or occupations. But if the
restraint be only partial, as that Titius shall not marry Moevia, or that
Caius shall not engage in a particular trade in a particular town or, place,
the restraint is not against public policy,, and therefore valid. 1 Story,
Eq. Jur. Sec. 274. See Newl. Contr. 472.
So "public policy" became to be more used in judicial decisons in the federal courts when the "general welfare" clasue in the Constitution was expanded in meaning to accommodate the legislation of the New Deal, which was all supposed to promote the public good. It is a legal term which means in socialist countries "we think its good so you have to do it".