INTRODUCTION

Just like trump cards can decide a lot of games, arguments based on public interests can dominate legal disputes by outranking competing considerations. In order to learn whether one has the public interest card up her sleeve, we need to understand why some legally protected interests are regarded as public interests and why other interests are not so regarded. To this end, as will be argued in this chapter, at least three problematic assumptions obscure our understanding of public interests in law and thus complicate the envisaged game.

First, it is often thought that the concept of public interest is wellestablished, even though no satisfactory definition of the concept exists. Typically, legal sources and scholarship confuse the claims about the public, the type of interest that the public has in certain matters, and the matters which are in the public interest.

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 common concern for, even though it is in the public interest to protect some matters in which some members of the public do not have their stake. For example, privacy is protected by the law as a matter of public interest even if some members of the public have nothing to hide, and freedom of speech is in the public interest even if some citizens have nothing to say.

Third, it is often thought that public interests need to be contrasted with private interests as if they were mutually exclusive categories, even though most legally protected interests cannot be classified as either public or private. For example, it would be incorrect to argue that privacy or freedom of speech cannot be classified as private interests because they are in the public interest.

In order to address these problematic assumptions about public interests, this 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. The following three sections (Sections 2 to 4) of this chapter examine each of the three assumptions in turn.