The civility of law: between public and private
In 1929 Virginia Woolf coined the powerful phrase ‘a room of one’s own’ to argue that women, like men, are entitled to a sphere to develop their capacities and pursue their goals.2 In so doing, she drew on an idea fundamental to the modern age: privacy. The idea that the individual is entitled to a private domain, immune from interference, pervades the politics, economics and culture of modernity. Its importance for modern individuals is such that our living space is configured with several senses of privacy in mind: the locked door of the bathroom behind which one attends to the body; the study, sometimes called the ‘den’ to which one retreats for solitary contemplation, or the ideal of one bedroom per child to encourage children to develop into autonomous selves. Privacy is perhaps one of the first abstract concepts that children learn, and a child’s interest in it is usually commended as a sign of maturity. We assume we will have opportunities for privacy in everyday life, and the invasion of privacy is a horror that we trust we will seldom encounter. The political institutions with which we protect privacy, such as individual
rights and the rule of law, are of recent vintage, however. They are complex and fragile. This is particularly the case in the face of developments in contemporary political theory which challenge the conception of a divide between the public and the private. In this chapter I examine the idea of privacy and how it is attacked on putatively progressive grounds. I note that there are certain respects in which the private must be intruded upon for social justice to be achieved. I take issue, however, with ideas such as an ‘ethic of care’ and the ‘politics of recognition’ which threaten to collapse the divide between public and private in their insistence that personal relations be the model for political life. I argue that we should understand legal institutions as deploying an ‘ethic of civility’ that respects a distinction between the private and the public, a distinction upon which the pursuit of justice depends.