Legal Rereading of Public Interest: The Outcome of Judicial Review on Activism in the Public Sphere

Document Type : Research Paper

Author

Associate Prof. Department of Law, Hamedan Branch, Islamic Azad University, Hamedan, Iran

10.22099/jls.2024.51592.5234

Abstract

Introduction: Public interest holds little weight in legal doctrine and lacks a foundational role in most constitutions. While some, like Germany, Spain, and Italy, mention it in specific articles, others—such as the Philippines and Portugal—use the term frequently but without depth or consistency.
Public law is intrinsically linked to the concept of public interest, as the provision of public services within the framework of public interest forms the foundation for establishing an administrative system. The administration acts as the executor, defender, and guardian of the public interest, effectively advocating for it.
The primary objective of this research is to develop a framework for public interest that is derived from and compatible with public law. The secondary objectives include providing a legal definition of public interest that distinguishes it from related concepts; specifying the components of public interest; and developing a repeatable model for identifying instances of public interest in various contexts.Methods: The research method is descriptive-analytical. Initially, existing theories on public interest are critically examined and explained. Based on the principles and methods of public law, a new framework is created to enable an accurate assessment of compliance or violation of public interest in specific cases within the legal system
Results: The results of a critical analysis of existing theories on public interest can be summarized as follows:

Served by Power: All theories consider public interest as aligned with and served by power. This alignment manifests in several ways: either by giving primacy to the will of the government, ignoring the lack of infrastructure for the participation of marginalized individuals, or deeming the significant lost interest of a minority negligible.
Based on Private Interest: Theories predominantly view public interest as a superstructure built on the foundation of private interest. Consequently, public interest often serves as a guise for justifying and pursuing personal interests, despite appearing benevolent and legitimate. This is problematic, as public and private interests are fundamentally different, with the former belonging to the public sphere and the latter to the private sphere.
Economic-oriented: Existing theories focus on economy and reduce public interest to the level of material enjoyment for all or how public wealth is redistributed, essentially equating it with social need. Consequently, issues such as freedom, public participation, and judicial independence are presumed to be irrelevant to the concept of public interest.
Project-oriented: One factor undermining public interest literature is its use for justifying projects, portraying public interest as their origin and legitimizing them. These projects, undertaken by the private sector as contractors for the public or government sector, reveal a fundamental issue: the private sector inherently seeks to secure private interests. Consequently, public interest is often used to justify the maximization of private benefit under the guise of serving the public. Thus, the justification for private benefit lies not in the project proposal itself but in the legal framework enabling its implementation, particularly the budget act, which requires prior authorization for any project to proceed.

 Conclusions: From the perspective of public law, the public interest is the consensus of participants in the public sphere on an issue, such that a united voice is heard. This consensus is consolidated in the form of parliamentary law, mediated by political parties, and supervised by the judiciary over parliament to ensure respect for children, minorities, and marginalized people, as well as the will of the public. This process particularly utilizes general principles of lawThe solution to the claim of a violation of the public interest by parliament is to establish a court with the competence to invalidate laws. In this court, the judge rules based on general principles governing public interest, rather than on statutory laws or even the constitution. The process of identifying new general principles constitutes a form of constitutionalization of law. Additionally, a large jury can serve alongside the court as advisors, simulating the public sphere to facilitate better judgment

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References

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Journal of Legal Studies
Volume 17, Issue 3 - Serial Number 57
October 2025
Pages 321-356

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