Rationality and Cultural Pluralism in the Non-recognition of Foreign Marriages

Bibliographic Data

ID9929463
AuthorsJohn W Murphy (0000-0003-1479-6823, corresponding author), John Murphy (0000-0003-0200-7778)
Year2000
Volume49
Issue3
Pages643-659
Publication date2000-07-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueInternational and Comparative Law Quarterly (JOURNAL)
Journal identifiersISSN: 0020-5893 • E-ISSN: 1471-6895
PublisherCambridge University Press (CUP) (PUBLISHER)
DOI10.1017/s002058930006440x
OpenAlexW1989578912
LanguageEN
Citations received3
References cited15

This article considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages 1 whose formal validity 2 is beyond question and whose essential validity 3 is probably also satisfied. 4 It 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 and some attention to reasonable policy ”. 5 Nearly 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”. 6 Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention. 7 It 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. 8 It 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 a good reason for its application”. 9 So 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”. 10 A 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. 11 But 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

Discretion · Epistemology · Foreign policy · Law and economics · Meaning (existential · Pluralism (philosophy · Political science · Premise · Rationality · Sociology · Veto · Conflict of Laws and Jurisdiction · Law · Legal principles and applications · Multicultural Socio-Legal Studies · Philosophy

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