1.1.
1 Conscious Application
Modern form of the doctrine of public policy emerged most concrete in
the 19th century nineteenth century where Common law jurists appeared
to have accepted the doctrine but found no need to labour on its
definitional aspects. Thus public policy began to be accepted as a self-
evident principle such that jurists appeared happy to refer to the doctrine
as trite law as aptly explained as follows by an American judge,
Kekewich J on the case of Davies v. Davies1 that;
"public policy does not admit of definition and is not easily explained. It
is a variable quantity; it must vary and does vary with the habits,
capacities, and opportunities of the public"
While jurists acknowledged the vagueness and malleable nature of public
policy, they however, increasingly demonstrated firm acceptance of its
place in the legal system as they declined to enforce some contracts on
the basis that they injured public welfare or interests, or that they were
contrary to public decency, sound policy and good morals". The following
words of Lord Burrough on the case of Richardson v Mellish2 summarise
the state of the doctrine in English law during this period
"If it be illegal, it must be illegal either on the ground that it is against
public policy, or against some particular law. I, for one, protest [...]
against arguing too strongly upon public policy; it is a very unruly
horse, and when once you get astride it you never know where it will
carry you. It may lead you from the sound law. It is never argued at all
but when other points fail."
That said however, there have been attempts to concretely define "public
policy." In England, for example, it was described as "a principle of
judicial legislation or interpretation founded on the current needs of the
1
36 C. D. 364 (1887).
2
Richardson v Mellish [1824] 2 Bing at 252
community".3 In the United States, Winfield noted that the treatise
Corpus Juris Secundum stated that;
"contracts contrary to public policy, that is, these which tend to be injurious
to the public or against the public good, are illegal and void, even though
actual injury does not result there from." 4
Thus public policy has emerged as a vital aspect in the modern concept
of legality in contract law in the Common law world as summarized in the
following words of Lord Mansfield on the early English case of Holman v
Johnson5, the classic authority of the doctrine of illegality, when Lord
Mansfield said:
"The principle of public policy is this: ex dolo malo non oritur actio. No
court will lend its aid to a man who founds his cause of action upon an
immoral or an illegal act. If, from the plaintiff's own stating or
otherwise, the cause of action appears to arise ex turpi causâ1, or the
transgression of a positive law of this country, there the court says he
has no right to be assisted"
In line with this principle, the US Supreme Court stated on the case of Gibbs
& Sterrett Mfg. Co. v. Brucker that6 "the elementary principle that one who
has himself participated in a violation of law cannot be permitted to assert in
a court of justice any right founded upon or growing out of the illegal
transaction".
3
See Restatement (Second) of Contracts, 1981, §178, June 2014 (Westlaw US).
4
n 25, above
5
[1775] 130 E.R., at 294
6
111 U.S. 597 (1884) at 601.
