The Concept of Public Interest

Summary

THE PROBLEM

Public interest, in the words of Felix Frankfurter, is a “vague, impalpable but all-controlling consideration”. It carries legitimacy and justifies coercion; and it has done so ever since ” Salus populi suprema lex esto” rang as a maxim from Cicero's De Legibus to Locke's Two Treatises and beyond. Its vagueness, combined with its extensive range, explains the concept's success just as it is responsible for its failings. When judges assess the public interest, they consciously or subconsciously project their cultural roots, ideological convictions and political circumstances into its meaning, while politicians believe that election results have given them carte blanche to pronounce what the public interest is. The danger is as obvious as it is great. A man's appraisal of what is good for the community may well turn out to be but the vessel for the ulterior motives of factionalism and self-possession. Thucydides‘ famed observation to that effect has certainly not lost its edge in modern times. Thus, even the most virtuous man's imposition of his view on public interest should alarm us. And perhaps we should be most on our guard when such an imposition is disguised by the well-worded manner of its delivery. After all, Cicero's eloquence in his Catiline Orations has prevented generation after generation from considering that perhaps it was Catiline's demand for social equality that might have fulfilled the salus populi maxim best.

With the aim to limit the vagueness of public interest and establish boundaries to tame its all-controlling potential, this quest for the concept focuses on three questions: (i) how does the content of public interest form; (ii) how does it manifest itself; and (iii) what role does it play in the legal system? First, even if in a rather simplified manner, this opening chapter discusses several standards of public interest constructed from leading theoretical accounts on just political organisation. These accounts were chosen according to their capacity to represent distinct approaches to the problem at hand, which again, taken as a whole, may give a pretty good idea of the overall spectrum of what is (more or less) commonly taken to be “the public interest”.