Under the present law, policy-based reasoning plays a major role in the judicial determination of private law disputes. The propriety of this type of reasoning, however, has been the subject of much debate. Whilst many argue that there is nothing objectionable about using policy-based reasoning, others, particularly those who believe in a rights and/or corrective justice-based view of private law, argue that policy should play no role in the determination of private law disputes, and that courts should instead rely on what they call “principle”. This article will examine both sides of the debate, initially exploring what is actually meant by “principle” and “policy”, and then providing an overview of the primary arguments relied on in favour of both a policy- and principle-based approach to resolving private law disputes. Finally, a compromise between the two approaches, the so-called “pluralist” approach, will be examined.
