Why courts should not balance rights against the public interest

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Abstract

Most bills of rights allow for the restriction of rights in the interests of the public. But how should courts decide when the public interest should prevail? This article draws on philosophical work on practical reasoning to argue against the popular view that courts should use a balancing test which weighs the consequences of protecting the right against the consequences of restricting it. Using two United Kingdom cases as illustrations, it argues that there are good reasons to 'overprotect' rights. Judges, in their reasoning, should assign more weight to rights and less weight to the public interest than they would on an application of the balancing model.
Original languageEnglish
Pages (from-to)873-902
Number of pages30
JournalMelbourne University Law Review
Volume31
Issue number3
Publication statusPublished - 2007

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