The Public Interest: Clarifying a Legal Concept

• Published date: 01 June 2024
• Author: Eric R. Boot
• Date: 01 June 2024
• DOI: http://doi.org/10.1111/raju.12401

© 2024 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 37 No. 2 June (110–129)

The Public Interest: Clarifying a Legal

Concept

ERIC R. BOOT*

Abstract. Appeals to the public interest in law are commonplace, but typically made without

clarifying what the public interest is and how it can be determined. In law, this has led to ad

hoc applications of the public interest and, consequently, to “judicial idiosyncrasy,” posing a

threat to legal certainty. This paper aims to remedy these problems by providing much- needed

conceptual clarification. It proposes that something is in the public interest if it increases the

opportunities of the members of the public to pursue and realize the (permissible) ends they all

share qua equal members of the public.

Ah! je vois, fit Rambert, vous allez parler de service public. Mais le bien public

est fait du bonheur de chacun.

—Albert Camus, La Peste (1947)

1. Introduction

The COVID- 19 pandemic brought about a resurgence of appeals to the public in-

terest. Citizens were asked to accept quite severe restrictions to their rights to free-

dom of movement and association so that the virus might not spread so quickly as

to overrun our hospitals’ capacity. In many countries, people were, furthermore,

asked to accept limitations to their right to privacy for the benefit of a contact-

tracing app. In public debate, the case for accepting such limitations to our indi-

vidual rights was often made by appealing (rather loosely) to the public interest.

Like Rambert in Camus’s novel The Plague, we are presented with a choice be-

tween our own happiness or wellbeing and the public weal. And like Rambert,

some might take issue with the idea of an overarching interest of a supraindivid-

ual entity called “The Public,” to which we must sacrifice our private interests or

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,

which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial

and no modifications or adaptations are made.

* This paper has profited from valuable feedback from several online audiences during the

COVID pandemic, such as the 2020 ASPP Annual Conference and the 2020 MANCEPT work-

shop titled The Public Interest and the Common Good: Historical and Contemporary Use of Contentious

Concepts. But feedback from Axel Gosseries, Jane Mansbridge, Johan Olsthoorn, and Daniele

Santoro was especially helpful.

111

Ratio Juris, Vol. 37, No. 2 © 2024 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

The Public Interest: Clarifying a Legal Concept

with which we ought to make our private interests coincide. The Rambertians will

insist that, instead, the public interest is somehow derived from the private inter-

ests of each (through aggregation, for example). The aim of the present article will

be to develop an account of the public interest that steers clear of both what we

may call the Aristotelian view, which prescribes a strict unity between individu-

als’ private interests and the public interest, and views (like Rambert’s) that would

have the public interest proceed from private interests. Something is in the public

interest, on the civic account for which I will argue, if it increases the opportunities

of the members of the public to pursue and realize the (permissible) ends they all

share qua members of the public.

Despite the central place the public interest still occupies in all our minds, the

importance of clarifying the concept is not limited to the recent pandemic. Instead,

it is routinely appealed to in a plethora of different fields. We find it, for example,

in various areas of law: the European Union’s General Data Protection Regulation

prohibits the processing of personal data unless “processing is necessary for rea-

sons of substantial public interest” (art. 9(2)(g) GDPR); whistleblower- protection

legislation often maintains that unauthorized disclosures of classified documents

may be justified all things considered if the revealed information is in the public

interest;1 human rights law recognizes sundry public interest justifications of

rights limitations (McHarg 1999); in the United States, broadcast programming is

expected to meet a public interest standard (Sunstein2000); expropriation law

holds that expropriation may be justified if it serves an important public interest.2

The public interest thus plays a crucial role in law: It provides a justification for an

exception to the application of a rule. All the more regrettable it is that the law

does not provide a clear definition of the public interest, or at least a procedure by

which to determine it in a particular case. This deficiency, according to some legal

scholars, has led to ad hoc applications of the public interest and, consequently,

“judicial idiosyncrasy” (Lewis 2015, 143), which may pose a threat to legal

certainty.

It is true that legal scholars have provided an overview of the manner in which

various courts have applied the public interest; they have explored the import-

ant question of how to balance rights against the public interest (Meyerson2007);

and they have criticized the balancing of individual rights against public interests

(Tsakyrakis2009). In these discussions, however, legal scholars seem to be working

on the unspoken presupposition that we have a clear, shared, and plausible under-

standing of the public interest, which enables us to discuss, for example, the correct

balance between it and fundamental rights. As will be shown in Section6, however,

such an understanding of the public interest is absent in law. Before we can properly

tackle the problem of balancing rights against the public interest, we need a clearer

1 See, e.g., the UK Public Interest Disclosure Act 1998 and the 2023 Wet bescherming klokkenluid-

ers (Dutch Whistleblower Protection Act), art. 1 (translated into English at https:// bit. ly/ wet-

besch ermin g- klokk enlui ders- 2023- en). See also the case law of the European Court of Human

Rights, specifically Guja v. Moldova [GC], no. 14277/04, § 74, ECHR 2008. Legal scholars argue

the same: See, inter alia, Benkler2014 and Kagiaros2015.

2 Article 1 of protocol 1 to the European Convention on Human Rights (“Protection of Property”)

states, for example, that expropriation may be justified if it is in the public interest (and so long

as two further conditions are met).