Thisarticle considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages1whoseformal validity2is beyond question and whoseessential validity3is probably also satisfied.4It has been widely stated that this discretionary veto is to be wielded in accordance with the dictates of “public policy”. As far back as 1945, Lord Greene MR said that such matters were to be resolved “with due regard to common sense andsome attention to reasonable policy”.5Nearly 40 years later, Lord Simon, similarly minded and speaking in the House of Lords, was a good deal more emphatic. He said: “[t]here is abundant authority that an English court will decline to recognise or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy”.6Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention.7It is my intention to address that anomaly. It is wholly inadequate, as is sometimes done, both by the courts (as we have seen) and academics, simply to refer glibly to “public policy” as though its contents were somehow self-evident and its meaning plain.8It is also signally unenlightening merely to state, as Jaffey has done, that “[t]he premise should be that an invalidating rule of a domestic system, whether English or foreign, should only be applied to a given international marriage if there is agood reasonfor its application”.9So doing merely recasts one nebulous term, “public policy”, as another, “a good reason”. Judicial synonyms have been scarcely any more illuminating. Take for example Lord Simon's famous enjoinder to have recourse to “common sense, good manners and a reasonable degree of tolerance”.10A number of familiar criticisms can be made of the opacity of such broad terms as “common sense”, “good manners” and “a reasonable degree of tolerance”: they deny the common law the clarity, consistency and objectivity that are frequently (and correctly, in my view) thought to be necessary in order to legitimate and constrain the adjudicative function.11But beyond these objections, two further, more particular criticisms can be made in respect of the invocation of “public policy” to deny recognition to “offensive” foreign marriages.
The Instability of the Standard Justification for
Physician-Assisted Suicide
