Law and Society - competing interests topic 5

Question 1

Pharagraph 1

Interest and balancing

Answer 1

An interest is defined as a claim/ expectation or right.
Balancing is looking at the law and finding a solution to reach a decision that is the leas detrimental to all involved.
Symbol of the scales justice summarises that it is the laws job to balance both sides to achieve a sense of justice.
In the UK it is a significant part of Parliament and the courts to resolve legal conflict of ineterests; Parliament does this through legislation and courts do this through litigation.

Question 2

Paragraph 2

Illustration of balancing

Answer 2

An example of this is in a case where courts had to resolve a conflict of interest in the case O v Rhodes.
In this case the mother of a psychiologically vulnerable 11 year old brought proceeding to secure an injunction to stop the publication of a book written by a child’s father who contained refrence to sexual absue he had suffered.
The courts had to balance the rights of the child and the father and the rights of the child against general right of freedom of speech.
In this case the rights of the father and the freedom of speech were deemed ‘more important’ than the rights of the child.

Question 3

Paragraph 3

Balancing conflicting interests

Answer 3

Balancing conflicting inetersts can be seen in all areas of law: criminal, tort, land law, trust law but mostly in human rights.
Balancing conflicting ineterests can be viewed in two broad categories, a private claim in conflict with another private claim, for example two parents who both want custody of their child.
There can also be a private claim in conflict with a public claim, for example an individual who wants to stop a motorway being built through his bac garden to the greater good to the country for having the motorway built.
Balancing conflicting interests can also be seen in areas of procedual law for example providing funding for people that pass the interests of justice and means test in criminal access to justice.

Question 4

Paragraph 4

Theories of conflicitng interests

Answer 4

There are different theories about whether the law should get involved in balancing conflicting interests.
A utalitarian like Bentham would argue that the law should balance coflicting inetrests to ensure the greatest good for the greatest number of people.
Therefore he would argue that the decision in Beghal v DPP achieved justice as more people are protected from terrorist attacks.
Therefore Mrs Beghal’s individual rights are an acceptable ‘price to pay for the greater good.

Mill would argue the law should not get involved in balancing interests unless harm is caused to others.
Therefore Mill he would say that the courts shouldn’t have intervened in the case of Dickinson v UK.
Here the couple wanted artifical insemination clearly here no harm would be caused to anyone so MIll would argue that the law wouldn’t need to get involved.

Question 5

Paragraph 5

Pound

Answer 5

A theory which attempts to explain the importance of balancing inetrests and how justice is best achieved is that of Pound who was an American lawyer.
Pound saw law as a tool which could engineer how society was regulated by balancing interests in order to build the best structure in society.
He believed that pblic interests should only be balanced against public interests and private interests should only be balanced against private interests.
This hasn’t occurred in practice as seen by vaious areas of law predominently the right to die debate which saw the very public/ moral right of the sanctity of human life and the need to protect it all costs.
The supreme court decided in favour of the broader public iterest but encouraged Parliament to examine the issue.
Parliament did so very recently and after a free vote they have decided to change the law.