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Balancing Competing Interests

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Introduction

Balancing Competing Interests Everybody would want to be sure that their interests are protected by the law and that the law achieves this through various sets of rules. Inevitably the interests of one individual and the interest of the majority may sometimes fall into a conflict. The law needs to ensure courts and tribunals that if conflicts of interest arise there is a means of settling them in a way that tries to balance the opposing views as fairly as possible. The sociological school of jurisprudence see law as a social phenomenon that is best discussed in terms of functions, roles, classes and so on rather than in such terms as powers, rights and duties. Rudolf von Jhering saw laws as a means of ordering a society in which there are many competing interests. All interests need to be satisfied. The law therefore acts as mediator assessing the value of each of these interests and determining the proper balance between them. ...read more.

Middle

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. ...read more.

Conclusion

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. ?? ?? ?? ?? Alexandra Popovici ...read more.

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