Private Law Theory

ABSTRACT
An essential requirement for charitable status is that the organisation or trust is for the public benefit. While the concept of public benefit can be hard to pin down, one way it has been determined is by weighing the potential benefits of the charitable purpose against any potential detriments. It argues that this balancing exercise, at least in the context of charities law, can be both flawed and misguided. It is often flawed because the decision-maker has no clear sense of the value/s they are trying to advance through this balancing exercise. It is often misguided because the values purportedly being balanced may be incapable of being compared or weighed against each other. The chapter starts by exploring the current approach to balancing that is adopted by decision-makers when determining public benefit. Here it observes that, unlike other areas of law such as bills of rights jurisprudence, the analysis undertaken by decision-makers is underdeveloped. This enables charity law to function without clearly identifying and extrapolating the values at play. While not identifying the underpinning values may have its advantages, it poses difficulties when the decision-maker is presented with purposes around which there are contested views. The second part of the chapter explains how the balancing exercise, as it is currently approached, often requires the decision-maker to conduct a balancing exercise without clarity around the values at play – making the exercise flawed – and often in circumstances where the values are incomparable or incommensurable values thus making the exercise misguided. The final part of this chapter explores how an express commitment to the value of autonomy might address some of the challenges that decision-makers face when weighing benefits against detriments, particularly when faced with controversial charitable purposes such as purposes that entail discrimination.

Norton, Jane Calderwood, Weighing Benefits and Detriments in the Law of Charity (March 16, 2021). This chapter was published in Charity Law: Exploring the Concept of Public Benefit (Routledge 2022) edited by Daniel Halliday and Matthew Harding.