This difficulty of definition has not deterred rights theorists. 2 x See Lord Oliver in In re KD (a minor) 1 AC 806, at 825. This said, the notion of a right is no easier to define as a senior judge in the United Kingdom once observed. Yet if an interest is to be taken seriously, it is important that the term is given some substance even if the substance itself turns out to be more flexible or fluid than the strict theorist would desire. What is meant by the term ‘interest’? As we shall see, this is by no means an easy question to answer. If one is to take interests seriously, the first and foremost question is one of definition. Given this strategic position, an ‘interest’ could provide an excellent benchmark for assessing legal judgements and legal reasoning. This thesis is that the notion of an interest is, on the one hand, descriptively and explanatively a far more important concept than the notion of a right but, on the other hand, is, institutionally and conceptually speaking, no less a formal concept than a right. This comparative dimension will, to an extent, be harnessed to support the following thesis to be extracted from the analysis. The present author would like to acknowledge from the outset the great debt owed to this book. 1 x In particular from Professor François Ost: Ost 1990. But the article will also have a comparative dimension since the concept has received some detailed attention on the continent. It will be examined mainly in the context of English law and this examination will be extended into some specific areas of difficulty. The purpose of this article is, then, to examine this legal notion that has not received much general attention, at least in recent years, in the UK literature. It can offer a means for bringing together different areas of law and different models of reasoning. An interest, while in many ways much less normative and more descriptive than a right, has the ability to be wide-ranging as an analytical tool that functions both within the law and within the facts.
It can certainly express forcefully legal relations that have a strong persona-res property-like structure ( quod nostrum est – ‘what is ours’ – as a sixteenth-century jurist put it), but it is less helpful when the focus of a claim is on, for example, the behaviour of a defendant and where the question is more realistically whether or not the claimant has a remedy given the facts in issue. Should jurists take the notion of an interest as seriously as the notion of a right? This article will argue that while the concept of a right has a powerful rhetorical value that should not be underestimated, it actually is not very helpful as an explanatory device with regard to the reasoning and methods to be found in common law cases.
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