Calculating ‘Public Interest’: Common Law and the Legal Governance of the Environment

Abstract

Drawing inspiration from O’Malley’s very recent attempt to introduce greater subtlety into governmentality thinking about the operation of the common law of contract (O’Malley, 2000), this article seeks to explore some of the nuances of the common law’s way of calculating interests. O’Malley argues that the law of contract developed in a more pragmatic fashion than an understanding of law within liberal economic theory allows. He says that contract law developed on the basis of the force of uncertainty and practical experience, as much as it did on the basis of the abstract and quantifiable calculations of the rational risk manager - a ‘pragmatic and situational’ form of calculation rather than an rational, abstract one (O’Malley, 2000: 477-8). We argue, using mainly Australian examples concerned with the legal governance of the environment, that non-pecuniary public interests are also subject to this type of ‘pragmatic and situated’ calculation within the common law, one we refer to as ‘rhetorical’.