The courts don’t follow Roscoe Pound’s idea that you can only balance interests of the same kind a way in which you can consider how effectively the law is at being able to balance interests is to compare public interests with private interests.
As seen in private nuisance the law is concerned at achieving a balance between an occupier’s quiet enjoyment of his or her land and a neighbour’s legitimate use of his/her land. As seen in Miller v Jackson, the conflict involved an application for an injunction against a cricket club. Lord Denning seen the problem in terms of ‘a conflict between the interests of the public at large and the interest of a private individual’. He concluded that the public interest outweighed the individual’s and refused to grant the injunction.
Ronald Coase proposed a theorem. Its preconditions are that all negociations take place between rational people each desiring to maximise his wealth and each fully seized off all relevant information. Under these conditions and if no transaction costs then the most efficient outcome will occur no matter what legal rules are adopted. Chase saw this question in purely economic rather than moral terms.
Calabresi saw that the aim of tort law should be to achieve the optimum number of accidents. Aim to achieve a level of such that the combined costs of prevention and compensation are as low as possible.
An area in which there is conflict between public and private interests is the protection of Human Rights and the Human Rights Act that would point out the private over the public interest. On the other hand relevant articles of the European Convention on Human Rights have derogation clauses especially so that public interest take procedure.
Criminal Penalties have been attached to undesirable behaviour form the individual self interest towards the interest of society as a whole to tip the balance away. In contrast, Rewards may be attached to desirable behaviour to encourage the individual to set aside his own interests and act in the public interest. This is illustrated in the case of R v Craig where the judge ordered a reward of £500 to be given from public funds to a passer by who tried to save the victim’s life by giving first aid.
Civil Compensation (damages) may be awarded to redress a balance that has been unfairly imbalanced Rylands v Fletcher. Civil Injunctions (backed by threats) may be issued to restrain undesirable behaviour or occasionally to compel good behaviour eg Christie v Davey where an injunction was granted.
Criminal Law is concerned to balance the competing interests of society and the offender. Each offence carries with it a right not to be the victim of the offence. Criminal law imposes sanctions on those people who in effect fail in their duty and infringe their rights. The natural right to life means that there is a duty no to kill.
The changes and discussion of law and order in the press and by politicians suggest that the balance in this are is far from effective. The Criminal Justice System was introduced and criticised because although it tried to achieve balance by making fines more equal it was seen as unfair. However the Crime Sentencing Act that introduced the mandatory sentences is an attempt to protect the public was criticised by judges as it prevented them from being fair to individual offenders.
Negligence is a tort that we all know is based on proving a duty of care, so our rights are interfered with when the D fails to prevent his negligent acts or omissions which he should contemplate will lead to foreseeable harm. It tries to balance the two by limiting liability in respect of the consequences regarded as remote or unforeseeable.
As conclusion, it can be seen that achieving balance isn’t easy. In many areas it can be argues that the law was effective in achieving balance but in others especially public interests are in conflict with private interests and the law hasn’t been as successful in achieving a equal balance.
