by John Coggon, Professor of Law, University of Bristol Law School
The public interest has no single, fixed definition. Even as a technical term of art its sense varies both for being context dependent and for being a question that may be settled by different sorts of institutional actor. It may, for instance, demand consideration of national security, national economic interest, protection of health, maintenance of a justice system, protection of fundamental rights. And determinations may be made by courts, politicians, legislators, executive agencies, and so on. Each can and will bring different forms and ranges of consideration to the process of determining what the public interest demands, and whether those demands are compelling.
As a legal scholar with research interests in the philosophy of public health, I am particularly interested by arguments that centre questions of the good, and that explore and evaluate these against concerns in social justice and political obligation. Too quickly, people can seek to settle an argument by summary reference to ‘the public interest’, whilst glossing over significant challenges to its coherence. Across its potential (and actual) manifestations, the public interest speaks to distinct, contradictory imaginings of what matters. Insofar as this is as feature of the public interest, the public interest cannot itself then be the mechanism with which to answer the questions raised. We are left still needing a further means of assessing the authority—the moral legitimacy—of the overall system.
This is not just an academic concern. The public interest is both found as a part of law, and as a counterpoint to law. It may be the motivating factor for creating law, and the rationale for limiting—or even striking down—a law’s application. In any case, its ultimate practical effect is to define the boundaries of rights, powers, freedoms, and obligations. Howsoever a substantive determination of the public interest is arrived at, it manifests with a focus on institutions, on shared or collective benefit, and—crucially—on rationalisations by reference to consequences: it calls for the articulation of positive drivers in particular directions, and negative barriers that must not be crossed for where that would take us. In the remainder of this blog, I will tease out these ideas with reference to two phenomena. First, I think we do well to consider ‘conceptual doublespeak’, and the wayward equivocations in using one term to denote both a practical (possibly wholly illegitimate) reality and an overarching normative or philosophical position that purports to equate with necessary legitimacy. Secondly, by focusing on public health and political justification, I exemplify the complexity of value trade-offs even within one single ‘domain’ of the public interest.
Conceptual doublespeak in law and the public interest
To espouse an idea of the public interest is to aim for normative security; moral assurance. At least insofar as it equates with some sense of the public good, it invites a claim to rigour and legitimacy; a measure and method of guaranteeing that laws and other forms of governance will not just be clear and effective, but also good; worthy of respect. In this way, efforts to define and promote particular ideas of the public interest sit within broader tussles concerning political and legal obligation: questions about the authority of organs of the state against concerns, on the one hand, of the consent—howsoever understood—of those who are governed, and, on the other hand, a justification to govern that is based in the good—again, howsoever understood.
As a practical phenomenon, once we drill into the public interest we may see that conceptually it belies the same scope for doublespeak that we find in the idea of law itself. More kindly (to law), John Finnis captures this doublespeak in his paper (only available, to my knowledge, behind a paywall) ‘The Fairy Tale’s Moral’, when he refers to law having a “double life”. Professor Finnis invites a distinction to be recognised. He says: “Law’s existence, force and effect—its life—can… be understood as sheer fact (historical or predictable) or alternatively as directive standard.” While the former idea of law may be equated with concepts captured by legal positivism, the latter looks to something overarching; something beyond individual points of law. This provides (so the argument goes), through methods of practical reason, normative answers that can and should direct the practical application of law. It allows judges to apply law not just through narrow legal method but also through the application of practical wisdom.
This sort of “there’s law and there’s law” framing may provide an adequate alibi to spare the law’s blushes, or more positively to allow that law may be clear and effective and good (in the spirit of open disclosure, I am sceptical). But it relies on the balance of two fundamentally distinct forms and sources of action guidance within a single idea (or anyway under a single label). Conceptually, but with real practical effect, the public interest may belie the same sort of scope for doublespeak. It presents its own alibis by embracing its own distinct markers of what it is and how it is justified. It aims for clear, practical prescriptions, but also normative legitimacy. Perhaps this becomes clearer if we combine two observations.
First, as seen above, the sorts of interests that form the practical prescriptions can and do differ significantly: a public interest in the protection of health is quite distinct from a public interest in economic well-being (of course there are instances where one requires the other, but were one wholly reducible to the other we would not find much sense in being able to look at them separately). Such questions become more challenging, furthermore, when we keep in mind the consequence-orientation of public interest ideas: long-term economic well-being may invoke quite distinct boundaries on immediate rights, powers, freedoms, and obligations, as contrasted with short-term economic well-being.
Secondly, we should scrutinise the nature of normative judgment that claims made in the name of the public interest are worthy of respect. Here we do well to look to theorising on social justice. Amartya Sen’s contributions on this point are telling. Sen—including through his ‘three children and a flute’ example, which is well explained here—demonstrates how singular concepts of reason and justice fail to account for plural, distinct, comprehensive theories each of which is persuasive on its own terms but fundamentally contradictory of the next. Insofar as the public interest gives hints to comprehensive concepts of the right or the good, it will play out in a world where different decision-makers and institutions do and will disagree on these, whilst each presenting sound and convincing schemes of reasoning.
Health/health trade-offs as a model of the challenge
To make this discussion more concrete, let us turn to law and the public’s health. A pervasive question in that domain concerns normative justification; how we establish a mechanism for understanding what should positively be done in the name of health, and within what constraints. This covers the use and form of law, and at its foundations it includes a need to consider the meaning of serving the public interest.
As we saw in debates on ‘lockdown’ regulations during the COVID-19 crisis, these considerations can invite the (quite reductive) pitching of tensions between (say) health and liberty, or health and the economy. However, the normative dimensions of value trade-offs are much more finely tuned: as captured if we focus instead on trade-offs between health and health itself (a point which I have discussed at fuller length here). Writing on health/health trade-offs in the context of environmental regulation in the mid-1990s, Cass Sunstein highlighted how government actors work with limited information and selective attention, rather than omniscience and a view to the system as a whole. But also, he highlighted that there are qualitative distinctions in how we choose to understand and respond to health risks; meaning we cannot define all policy approaches by reference to a single measure (such as cost/benefit analysis). As Professor Sunstein put it:
“People care not simply about how many lives are saved, but also about whether risks are involuntarily incurred, especially dreaded, inequitably distributed, potentially catastrophic, faced by the current or by future generations, and so forth.”
Such discord plays out when we look at efforts to define ‘public health’ itself, or proposed (ostensibly) alternative ideas such as planetary health, to emphasise environmental interests, transnational interests, the future interests of people who exist now, or the interests of future people who are not even yet born.
Competing, robust visions of the public interest within a diffuse system
The problem of the public interest, if we want to believe in it, is not that it permits no right answer: it is that it permits a plurality of equally-rigorous, equally-compelling, good answers. Efforts to overcome this through procedural mechanisms—such as deliberative democratic means—do not escape the need (and with it inherent contestability) to make hard normative commitments. Equally, efforts to overcome it by reference to institutional competence or constitutional role cannot bypass the real-world fuzziness of overlaps in the functions of different organs of the state (less still the governance functions of non-state actors).
Framing matters here. We cannot lean back on an imagined system within which there is some sort of linear structure of normative authority; let alone one whose linear pathway tracks step-for-step in parallel with the weight or concentration of practical power. We have a diffusion of power and influence across a complex, unfixed system of governance actors. That system’s dynamics come through a plurality of formally—and sometimes radically—distinct normative frameworks. At a headline level we might contrast here laws and conventions, and legal and political power. But the breadth and variation is much vaster: different moral systems, professional codes, social pressures, institutional edicts, and so on. And within all of these there are actual decision-makers and regulators (very broadly conceived). Some will operate without meaningful regard at all for something that may be called the public interest. But where these actors do purport to function in accordance with a guiding or constraining idea of the public interest, a forensic analysis of the points of substance of that term’s potential meaning will inevitably present an impossibly vast array of distinct, contradictory, equally good answers.