Principle and Policy in Contract Law: Competing or Complementary Concepts? by Stephen Waddams (review)

We can accept the reality of judicial law making while acknowledging that differences exist between the powers and competences of legislatures and those of courts. But what are these differences? One suggestion is that courts ought not act on the full range of reasons available to legislatures, that there are some reasons which, however sound, courts should disregard when deciding cases. Dworkin’s version of the argument is the most well known: courts should decide cases by reference only to those standards (reasons) he called principles and to the exclusion of those he identified as policies. Within private law, this argument has had something of a revival in recent years, as part of the trend toward corrective justice or ‘rights-based’ accounts of the law.

This is how Dworkin introduces his principle–policy distinction in ‘The Model of Rules I’:

Most often I shall use the term ‘principle’ generically, to refer to the whole set of these standards other than rules; occasionally, however, I shall be more precise, and distinguish between principles and policies . . . I call a ‘policy’ that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community . . . I call a ‘principle’ a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality. Thus the standard that automobile accidents are to be decreased is a policy, and the standard that no man may profit from his own wrong is a principle.¹

Here Dworkin refers to two concepts of principle. The first (principle versus rule) describes a type of standard which, rather than automatically settling all cases to which it applies, instead provides a reason for a particular decision which must then be weighed alongside and against other applicable reasons. The second (principle versus policy) identifies a particular subset of those standards; namely, those which take their force from morality.² ‘Automobile accidents are to be decreased’ is a principle in this first sense but not in the second. We can find alternative concepts of policy too: ‘policy arguments are arguments about what individuals’ legal rights and obligations ought to be.’³ So used, every principle (in either of Dworkin’s senses) – or at least every principle that has anything going for it – is supported by policy.

Accounts of principle and policy don’t begin and end with Dworkin, and others who have distinguished principle and policy have drawn a different line between them. Nonetheless, his account serves to bring out two important points. First, any examination of the role that principle and policy have played in legal reasoning – such as Stephen Waddams undertakes in Principle and Policy in Contract Law: Competing or Complementary Concepts? – needs to be clear on what concepts of principle and policy it is looking at. Second, if such an examination is going to connect to debates over the place of policy in judicial reasoning, it had better make sure that the concepts of principle and policy it focuses on are the same concepts as have been employed by those who have seen the distinction as significant.

Now, Waddams is well aware that the words ‘principle’ and ‘policy’ have been used to mean different things at different times. But rather than recognizing that these different uses (often) identify different concepts, he appears to see them as different and competing understandings of some single concept of principle or policy⁴ or as evidence of that one concept’s ‘malleability’ (223). Either way, the implication is that there is really only one concept of principle and only one concept of policy in play, with these linguistic variations reflecting at most different conceptions of these concepts. This then encourages the thought that we might look to legal history to see what, as a matter of fact, the relationship between principle...