Private Interest

10 Key excerpts on "Private Interest"

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  From Dissonance to Sense

  Welfare State Expectations, Privatisation and Private Law

  • Thomas Wilhelmsson, Samuli Hurri(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  The proposed waste directive also offers a model of the role of a public interest litigant which would be of use in the further development of remedies law. If a common interest group were to obtain damages for the cost of remedying harm to the environment, it would not hold the money for its own beneficial use, but on trust for the described purpose. The idea of a litigant obtaining damages in private law which are to be applied for a purpose acknowledges the custodial role which many interest groups fulfil, and could deflect the orthodox emphasis on harm to the plaintiff as the measure of the award.

  But even if private law were to move in the direction lit up by the proposed waste directive, the issue arises: would it be private law? If one attributes an essence to private law, which sees it as concerned only with the self regarding and opposed interests of individuals, then such developments would indeed seem to transgress its constitutive boundaries. But it is possible to postulate a different ‘core’ characteristic of private law, which is more accommodating. This identifies private law with the absolute right of private individuals to mobilise law without permission of state: private law as unofficial law. The protection of person and property and enforcement of contracts which is embedded in mature capitalist legal systems provides a means, free from state control of protecting and vindicating interests. However, although such citizens’ interests have received protection in mature capitalism, those interests are not limited to the economic freedoms the private rights were primarily forged to protect. The non self regarding interests which citizens, acting in civil society (often in groups), may wish to pursue deserve legal recognition, and private law has the potential to accommodate them.60

  5. Conclusion

  The central distinction drawn in this paper is between two dimensions of the relationship between public interest and private law – between public interest as a factor shaping doctrine, and the scope for private actions to be used instrumentally in pursuit of public interests. On both dimensions, although there is significant scope for the recognition of public interests, the individualistic, self regarding grain of the law places limits on what is possible at present. It is arguable, however, that these limits are not inherent

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  From Positivism to Idealism

  A Study of the Moral Dimensions of Legality

  • Sean Coyle(Author)
  • 2017(Publication Date)
  • Taylor & Francis

    (Publisher)

  A ‘Will’ theory of rights may be distinguished from the Interest theory in the view taken of the boundary of private law, for where rights are viewed as consisting of protected choices of the right-holder (to waive or enforce duties, transfer property etc.), adjudicative reasoning will tend to retain its traditional focus upon the actual dealings of the parties to a case, thus excluding from deliberation a great many of the polycentric issues directly confronted where rights are regarded as defining interests in terms of some broader notion of the common good. Justice in the field of private law reflects a concern with the way in which relations between the parties came about, and it is therefore within the context of fairly focused doctrinal and circumstantial concerns, rather than in a spirit of wide-ranging political and social inquiry, that questions of legal right are typically addressed. The Will theorist thus regards rights as instruments of private law, to be distinguished from public law rules operating to protect interests in line with general social goals and policies. Perceiving no essential distinction between the two kinds of instrument, Interest theorists have tended to view the dichotomy between public and private law as relatively permeable and arbitrary: public law being the area of law in which various benefits are established or created, and private law concerning the way in which such benefits are applied. The Will theorist, on the other hand, sees in that dichotomy an important distinction between divergent modes of reasoning and argument: one focused upon public goods and collective policies; the other upon the establishment of a framework of rules by which the individual is left to order and prioritise his own affairs in ways that may conflict with the public good or the private aims of others.

  If that argument is valid, then it is not the presence or absence of legal protections that is central to the notion of a legal right, but rather the ability of the right-holder to exercise autonomous judgments about how such protections are brought into the service of his interests. It was Hart who first clearly traced the way in which rights serve the private pursuit of interests.13 Hart observed that the unifying feature of the four Hohfeldian entitlements, the reason we are tempted to refer to such distinct ideas as ‘rights’, is that ‘…in all four cases, the law specifically recognises the choice of an individual either negatively by not impeding or obstructing it (liberty and immunity) or affirmatively by giving legal effect to it (claim and power).’14

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  Politics, Policy and Private Law

  Volume I: Tort, Property and Equity

  • Jodi Gardner, Amy Goymour, Janet O'Sullivan, Sarah Worthington, Jodi Gardner, Amy Goymour, Janet O'Sullivan, Sarah Worthington(Authors)
  • 2023(Publication Date)
  • Hart Publishing

    (Publisher)

  All of these statements assume or assert the relevance of the public interest in determining the content of private law. The point of this chapter is to ask whether there is something wrong in making this assumption or assertion. We begin by asking whether there is anything in the very notion of private law that should automatically make suspect any references to the public interest when determining the content of private law.

  II.What is Private Law?

  The basic building blocks of private law were set out just over a century ago by WN Hohfeld: private law is made up of claim rights and corresponding duties, powers and corresponding liabilities, patrolled around by privileges and immunities that limit what sort of rights and powers people can enjoy.8 It might be objected that exactly the same could be said of public law, with the result that at first sight, Hohfeld does not help us understand what is distinctive about private law.9

  What makes private law distinctive, however, is that the Hohfeldian building blocks that make it up are interpersonal in nature. They define the relationships between individuals, where an individual is either a natural person (like you and me) or an artificial person (like a company or a local authority). So a private law right is a right held by one individual against another; correspondingly, a private law duty is a duty that is owed by one individual to another. A private law power is a power that gives one individual the capacity to affect another individual’s legal position, with the result that that second individual’s legal position is liable to be changed by the first individual.

  By contrast, a right or a power is a public law right/power if it is held by one individual against/over a set

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  Toward a Just Social Order

  • Derek L. Phillips(Author)
  • 2014(Publication Date)
  • Princeton University Press

    (Publisher)

  I The Private Interest Doctrine The doctrine of Private Interest assumes that individuals are guided entirely by considerations of self-interest and, so far as 1 As Parsons points out, some social theorists have wondered whether social order was possible at all and have even denied its possibility. Others assume that E X P L A N A T I O N A N D E V A L U A T I O N possible, act to choose the most efficient means for achieving their own private ends or aims. Under the most extreme form of this theory, every individual's ends are independent of every other individual's ends—even though they are, of course, influenced by the ends that others pursue and by the means chosen to achieve them. Although Herbert Spencer believed that the pursuit of in- dividual interests formed a self-regulating mechanism in society, 2 most Private Interest theorists emphasize the inevitability of con- flict, arising either because people desire different things or because they must compete for scarce resources. Hobbes, for instance, pos- ited war as inherent in human nature, which must therefore be- come subject to a social order represented by the absolute power of the sovereign. 3 Whatever the actual sources of conflict, Private Interest theorists see rules and laws emerging as a necessary condition for social order among persons with conflicting desires and objectives. Fur- ther, they stress that individuals will voluntarily comply with these rules or laws only to the extent that they believe compliance better serves their self-interest than does noncompliance. Max Weber was one of the theorists who viewed social life as characterized by competitive struggles among individuals and groups of individuals as each seeks to realize its own interests. But these competitive struggles, according to Weber, often generate social regularities or social order. He observes that "many of the especially notable uni- formities in the course of social action .

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  Public Interest Litigation in International Law

  • Justine Bendel, Yusra Suedi, Justine Bendel, Yusra Suedi(Authors)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  12 Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30).

  2.2 A Set Public and Interests (or Absence Thereof)

  One approach to the concept is to consider public interest litigation as “litigation that aims at protecting” a specific cause13 beforehand identified as embodying a ‘public interest’. However, the beneficiaries and the substantive international law potentially covered by the notion are still undefined (section 2.2.1), and thus its suitability and added value in an international litigation context can be debated (section 2.2.2).

  13 Cao Mingde and Wang Fengyuan, ‘Environmental Public Interest Litigation in China’ (2011) 19 (2) Asia Pacific Law Review 219.

  2.2.1 Indefinite Public and Interests

  In the absence of a set definition, the substance (section 2.2.1.1) as well as the beneficiaries (section 2.2.1.2) of an eventual international ‘public interest’ still appear exceptionally vague.

  2.2.1.1 Unlimited Interests

  Objectively, an ‘interest’ in something stems from the benefits it might provide. These advantages can be material, as well as immaterial.14 In this sense, the international law applied for the benefit or advantage of a ‘public’ is to be considered as being in the public interest. In considering the substantial law covered by the notion, the instruments, fora and authors seem to follow two approaches.

  14 Inspired by the classification of the French Centre National de Ressources Textuelles et Lexicalles (CNRTL), ‘Intérêt’ <www.cnrtl.fr/definition/int%C3%A9r%C3%AAt > accessed 18 October 2022.

  For some, the issue lies in identifying the fields of international law potentially covered by the notion. In this regard, however, although some domains are regularly mentioned, there appears to be no real consensus as to a definite enumeration. Indeed, a non-exhaustive inventory includes international rules relating to corruption,15 regulation of waste or chemicals,16 human rights,17 the environment,18 outer space,19 the high seas or those aimed at the “maintenance of the international financial legal order” or the restraint on the use of force.20

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  Global Public Interest in International Investment Law

  • Andreas Kulick(Author)
  • 2012(Publication Date)
  • Cambridge University Press

    (Publisher)

  319 It deals with the exercise and control of public authority vis-` a-vis the individual, integrates domestic and inter- national law and provides the investor with trump cards to pierce the sovereignty shield of the host State. If we thus embrace the notion that international investment law inheres a Global Public Law character, it must be considered that balancing the individual with the public or with other individual interests is a general feature of every exercise of public authority and thus of public law. 320 The raison d’ˆ etre of each State is to serve its constituencies, be its political system democratic, communist or of any other kind. Thus, it is inherent in every public law relationship of the State and the individual (or any other private entity) that the individ- ual’s rights must be weighed against the interests that are of importance to the respective constituencies: in other words, the public interest. 321 As I have argued earlier, since there exists a widespread consensus nowadays that democracy is the most appropriate form of governance, as evinced in Article 25 ICCPR, 322 the relevant constituency is the people, i.e. the (collective of) individual human beings. Public interest in a system displaying constitutional and hence value- based features, however, does not necessarily mean the primacy of what appears best for the collective or the majority. In fact, it also means the protection of minority rights and particularly of individual liberties against intrusion by others, whether those others are the State, the demo- cratic majority or other individuals. Consequently, public interest has two dimensions, both of them equally valuable and applicable as a balance against the conflicting interest. Firstly, it has a collective dimension, i.e. measures that are to the benefit of society as a whole, as decided through 319 4 A.

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  International Law and Dispute Settlement

  New Problems and Techniques

  • Duncan French, Matthew Saul, Nigel D White, Duncan French, Matthew Saul, Nigel D White(Authors)
  • 2010(Publication Date)
  • Hart Publishing

    (Publisher)

  3 Programmes on radio and television highlighting the sufferings of consumers at the hands of suppliers, and consumer columns in newspapers, are interesting exceptions. They sometimes lead to the enactment of consumer protection legislation criminalising certain commercial practices, and so completing the translation of the contractual relations from the private to the public sphere. Private Disputes and the Public Interest 5 The focus upon the integrity of the procedure, rather than upon the substantive rights, is reflected in the fact that the plumber and I may choose not to refer any dispute arising from the contract to the courts but rather to arbitration—to settlement by a tribunal chosen by us, sitting and deciding the case in private, so that the public need never know that we have had recourse to arbitration, or what we said to the tribunal, or what the tribunal decided. But again, if one of us fails to comply with the award of the arbitral tribunal, the other may go to the public courts to obtain an order from the courts to enforce the award. If necessary, the successful party may invoke the assistance of the law enforcement agencies of the State in the coercive enforcement of the court order. Here, again, the pub-lic interest is engaged once the matter comes within the court system. 4 These observations are directed at the position in municipal law; but the essential distinction between public and Private Interest is one that has great importance in international law, too. There is, in the eyes of many international lawyers, a serious issue aris-ing from the convergence of two developments in international behav-iour, both of them obvious and well-known. The first is the growth in the scale and the pervasiveness of the power of private corporations, and of the dependence of individuals and societies upon them.

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  Public Law Adjudication in Common Law Systems

  Process and Substance

  • John Bell, Mark Elliott, Jason NE Varuhas, Philip Murray, John Bell, Mark Elliott, Jason NE Varuhas, Philip Murray(Authors)
  • 2016(Publication Date)
  • Hart Publishing

    (Publisher)

  The public interest conception has been hugely influential since this formative era, and has been relied upon to guide legal development across that field of law categorised doctrinally as public law. This has proven problematic. The public interest conception was developed by reference to only one sub-field of public law, the common law of review. However, contemporary public law is composed of a plurality of meaningfully different fields of law, each of which performs distinctive functions: it is an error of the first order to maintain that contemporary public law has an inherent functional unity.

  In contrast to the public-regarding nature of the public interest conception, human rights law has a strong individualist focus, while its principal function, of affording strong protection to and vindicating the importance of basic individual rights and interests, is much closer in nature to private law fields, such as tort. EU law evinces an integrationist rationale, the principal concern of core doctrines of EU law applied in domestic review proceedings being to ensure the supremacy and effectiveness of EU norms within municipal law, while different substantive fields of EU law have their own discrete concerns. Where the public interest conception has influenced legal development within these sub-fields, such as human rights law or EU environmental law, it has operated to undermine the coherence of these fields and stymie their distinctively valuable functions. For example, to adopt a public interest approach to remedies, developed by reference to an idea of public law concerned with protection of the collective good, within a field such as human rights law, which has a radically different function of affording strong protection to basic, individual personal rights and interests, is to spawn something akin to the mythical beast, Chimaera, described in Homer’s Illiad

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  Politics and the Public Interest in the Seventeenth Century (RLE Political Science Volume 27)

  • J. A. W. Gunn(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  arcana imperii to strengthen the state as in those conditions that would protect private rights. Some ventured no further, saying only that the public good was chiefly a matter of removing the most common private grievances relating to security of life and property. When the army and its well-wishers began their assault on Parliament a new theme emerged. Since the public interest was so closely related to shared particular needs, surely private men were adequate judges of it and might seek their own liberty should their representatives fail them.

  Like later democrats, those of the seventeenth century tended to move from the position that common men best knew their own interests to the position that they might then understand the public interest. They were not concerned with all of a man’s Private Interests, just those that most closely impinged upon public policy. Nor were they very explicit about the interests of single individuals, preferring to ascribe rationality to the public. However, they were obviously implying certain things about individual men. It happened that the individual interests of concern were rights valuable to all, and, indeed, insecure unless all shared them.1 Securing life and property was the sine qua non of further individual fulfilment. The connection between the public interest and those pressing particular interests that could be satisfied by political means was extremely close. Nor can one say that under the circumstances the transition from particular to general interest was unconvincing; though in order to make it a slightly unconventional view of the public interest was useful. This transition must have seemed fairly natural even to men who were not Levellers. John Sadler observed that since every man naturally sought his own good, it was strange that it was so difficult to find. He then proceeded to discuss his proposals for the good of the commonwealth.2

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  Rights: Concepts and Contexts

  • Horacio Spector, Brian Bix(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  29

  Lacking anything approaching these ideas, the classical common law could offer no basis for an understanding of rights as protected choices. Yet neither is there any real conformity with the notion of rights as constituting protected interests; for the procedural emphasis of the system of writs and pleadings made it impossible for plaintiffs to define their rights a priori in terms of established rules or principles. Plaintiffs did not enjoy claims to the enforcement of their rights, but rather undertook actions for a remedy in respect of wrongs which had been done to them. The Interest theory of rights can thus be seen to depend upon the same formal conditions as the Will theory.30

  This period in the history of the common law is nevertheless of some importance for an understanding of the development of the idea of a right within legal thought. For the emphasis on remedies reveals the common law as a form of moral association underpinned by an idea of the moral life of the polity as an unstable and deeply irregular landscape in which no level horizons for moral reflection are possible.31 The virtue of the common law was its adaptability : each case to come before the courts was different, because no two cases arose in exactly the same way, or in exactly the same circumstances, and thus each case demanded precise and careful deliberation rather than a tailor-made judgment fashioned from stock rules and principles. The strict rules of the system of writs were thus designed to set each case within specific limits, to render their peculiar features intelligible to judges who could then bring their amassed experience to bear on those facts. Legal decisions created precedents only informally: not by laying down formal rules to be followed in the future, but instead by sharpening judicial awareness of dimensions to a problem: ‘A clearly focused precedent would articulate the custom [of judges] better than the oral culture of judges, but it was not binding.’32

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