Three Problematic Assumptions about Public Interests in Law

Abstract

This chapter discusses three problematic assumptions about public interests in law. First, it is often thought that the concept of public interest is well-established, even though no satisfactory definition of the concept exists. Second, it is often thought that matters of public interest can be identified by asking what it is that the members of the public have mutual concern for, even though it is in the public interest to protect some matters in which some members of the public need not to have their stake. Third, it is often thought that public interests need to be contrasted with private interests, even though most legally protected interests cannot be classified as either public or private. In order to address these common assumptions about legally protected public interests, the present chapter suggests that we strictly distinguish the questions about how the concept of public interest is to be defined, how public interests are to be identified, and what matters are in the public interest. Finally, it suggests that the notion of public interest does not serve as an objective statement of fact that something is or is not a public interest, but a highly contextual label that marks the distinct normative consequences associated with the conclusion that something is to be regarded as a public interest.