chapter  2
9 Pages

The ‘public–private’ demarcation

Both common parlance and contemporary political philosophy would lead one to believe that the relation between the public and private domains is essentially asymmetrical. That is, our standard conception of these domains is one which, whatever their actual contents may be in any society, attributes the following two characteristics to the contents of the former: that they are entirely (a) non-identical with, and (b) instrumentally derived from, contents of the latter. On this view, which I’ll call the Asymmetry Thesis, the sphere of public

authority lacks any element of foundational independence from the sphere of private authority, and makes no autonomously generated demands upon the conduct of members of society. Rather, the former presupposes the latter and, accordingly, any theory about what its demands should be is necessarily constrained by whatever set of principles determines the demands of private domains. Whether the demands of those private domains are construed as being ones for Lockean natural rights, Rousseauian moral liberty or Benthamite maximised utility, the public domain is conceived as a set of instruments for their fulfilment. But strongly inclined as we are to subscribe to the Asymmetry Thesis, some

hesitation is warranted. For it is by no means true that legal and political theories – and the more popular views they sometimes reflect – have invariably sustained it. In fact, the thesis has been implicitly denied in at least two di€erent ways. It is denied by theories which maintain that all the contents of the public domain are identical with at least some private ones: that is, by theories which deny (a). And it is denied by theories which reject the full analytical reducibility of the public domain to an instrumental aggregation of private ones: that is, by theories which deny (b). Despite their significant mutual di€erences, what both of these types of theory share is the view that at least some of the contents of the public domain are not construable as instrumental derivations from those of the private domain. The public domain does not stand in a simple agent-principal relation to the private. In order to explore these denials of the Asymmetry Thesis something needs

first to be said about the concept of a ‘domain’. Domains are normative

entities. They can usefully be conceived as rule-assigned portions of actionspace. That is, they are collections of rights whose owners hold Hohfeldian claims which each correlatively entail enforceable duties in others.1 We can think of every particular owed duty as constituting a mini-or sub-domain for the person to whom it’s owed. And we can thus construe that person’s entire domain as composed of the entire set of duties owed by others to him or her, minus the duties he or she owes to others. Those sets of duties are, typically, mixtures of both negative (forbearance) and positive (performance) ones. In being owed those duties by others, a domain’s owner is thereby endowed with an entitlement implying that certain changes or continuities, in how that portion of the world is, should be brought about by those others. Now, as was suggested above, one way of denying the Asymmetry Thesis is

to arm the partial or complete identity of the public and private domains: to reject characteristic (a). For clearly, if items to be found in the former are identical with ones located in the latter, the two domains are imperfectly distinguishable and, to that extent, are not asymmetrically related to one another. It might appear, however, that the indisputable existence of separate bodies of public and private law – each with its own inventory of enforceable duties and correlatively entailed rights – is the decisive piece of evidence counting against such indistinguishability. But as Paton has tellingly observed,

this distinction has not always been clearly marked. Until the State itself has developed, public law is a mere embryo. Even in the days of feudalism there is much confusion; for no clear line can be drawn between the public and private capacities of the king. Jurisdiction, oce and even kingship are looked upon as property – indeed public law might almost be regarded as ‘a mere appendix’ to the law of real property so far as the feudal ideal is realized.2