Balancing conflicting interests Flashcards
Definition of interests
Interests can be defined by Rudolf von Jhering and Roscoe Pound as ‘principles identified by individuals and/or states as being of fundamentals importance’
Courts aim
The courts aim to balance these conflicting interests such as those between individual (private) interests, state interests and public interests.
Significance of balancing conflicting interests
The significance of balancing conflicting interests is that it attempts to create fairness and equity, as can be seen in the creation of acts such as the Consumer Rights Act 2015 and Unfair Contract Terms Act 1977
Reasons for the acts to be created
These acts were created to balance the imbalance of power between multinational corporations and individual consumers, protecting the rights of these consumers
Potential issue
One potential issue with this concept arises on the issue of subjectivity, where it is difficult to ensure that both parties feel their interests have been fairly met by the courts
How courts aim to balance
The courts aim to strike a balance by attempting to partially meet both sides’ interests, but this leads to a situation where both sides may feel aggrieved
Jeremy Bentham
The utilitarian viewpoint on balancing conflicting interests, as set out by Jeremy Bentham, would argue that when attempting to balance between private and social interests that the courts should always take the public interest as to benefit the most people
Roscoe pound - tort example
Roscoe Pound states that this is a viewpoint that the courts generally take, as is clear in the cases of Miller v Jackson (1977) and Kennaway v Thompson (1981)
Positive
One positive of the current stance on balancing conflicting interests is that it aims to achieve fairness and equity in society, and this will generally try to benefit as many people as possible
Final however.
However, the inherent subjectivity of the issue will often result in a situation where one or both parties feel resentment at the decision
