Culture and European Private Law

The public/ private dichotomy and its critics.

• The categories public and private have long been fundamental to liberal democratic understanding of social life. Yet however elementary the distinction between public and private may be in modern constitutional democracies, it is a distinction that invites confusion and ambivalence with respect to both its abstract meaning and its practical applications.

• Those who would navigate the distinction between public and private, accordingly, are faced with several daunting questions:

• First, is the distinction conceptually intelligible? ;

• Second, if it is, how is the distinction drawn?• Third, what is the proper relation between the

public and private spheres?

• Theorists both ancient and modern drew this fundamental distinction in political philosophy. It was a Greeks who first separated the domains of public and private, a distinction that they elevated into a dichotomy. The private sphere was conceived as the “household”, wherein family life naturally resided.

• It was a domain in which familial ties were fostered ; in which processes of reproduction, birth and death took place. The household was also the appointed realm of the feminine, of women engaged in affairs of domestic life to which nature had ostensibly commissioned them.

• In contrast, the public sphere (polis) was the domain of free citizens coming together on an equal basis to resolve issues of state.

For Aristotle public life was the site of authority, reason, and the virtues of civic citizens were equal participants in a common endeavor to live the good life. Domestic life was a necessary complement and precondition of public life. The denigration of the private sphere was axiomatic to Greek conception of politics and human affairs generally. It was a logically inescapable consequence of ethical and metaphysical doctrines fundamental to Greek thought concerning such matters as relation between the sexes, the nature of the good life, and the distinguishing attributes of human existence. Several such assumptions survived into the modern era, informing once again effort of political thinkers to identify the proper relation between public and private life.

ARISTOTLE

• Yet the distinction also took on a new meaning and importance in the modern age, as classical liberals sought to found politics directly upon philosophies of the individual. For liberals of the early modern period, the private sphere bears less upon family life than upon the individual.

• The separation of public and private spheres serves essentially the distinguish areas of decision making that rightfully belong to political institutions from those belonging to persons as private agents. Early liberals worries in ways that that their forebears had not about the public domain overwhelming the individual or intruding into the private affairs of citizens. Since persons by nature were free, rational, and equal, they were ill served by public institutions that reduced them to the status of subjects.

• For classical liberals, the private sphere continues to include the household wherein in accordance with tradition the husband and father is assumed to preside. The combined weight of custom and natural law had deemed that women, children, and domestic servants assume subordinate positions within the household, as feminists and other social critics would later decry. Yet the private sphere would also incorporate economic life, including not only matters of domestic economy but market relation broadly conceived . Liberals of this era inclined to regard property as not only that belonging to the private domain but as itself a fundamental category of political thought.

John Locke• John Locke is an obvious case in point, whose

Two Treaties of Government proffers a view of the social contract as effecting a state whose primary purpose is to safeguard what are essentially private ends – life, liberty and property. Public institutions are fashioned to ensure private purposes no less, and perhaps more essentially, than communal ends. According, the private sphere is modernity would lose its Greek connotation as a lesser realm of affairs, instead assuming stature and normative importance that it had previously lacked.

JOHN LOCKE

• Intermediate in the classical liberal scheme of things between the household and the state is the realm of civil society.

• Voluntary associations such as corporations, clubs, churches, professional organizations, and so on are neither public nor private in the narrow sense of these terms but occupy a middle position sometimes termed “the social”. More often, however, liberals incorporate civil society into the private sphere to distinguish it clearly from the realm of the political – that is, the state.

• Business firms and property in particular are described as private in order to protect the marketplace from excessive political intervention. Economic life is an affair of individuals pursuing private ends through the free exchange of goods and services, just as other voluntary associations that are intermediate between the individual and the state engage persons in practices of civic – not political –involvement. While some liberals would prefer to speak of civil society as belonging to the public realm, thus distinguishing it from the private sphere conceived narrowly as the household, the more common view is to conceive the public domain as the domain of government and the private sphere as the realm of individuality, the household, the marketplace, and civil society in general.

• The elevation in status, then, of the private in modern times coincides with broadening of its interpretation. The private sphere would be the site not only of personal undertakings and family life but a civic participation in its myriad forms.

• As a philosophy profoundly committed to human freedom, one of liberalism’s principal concerns would be to safeguard private life from undue intrusion by public institutions in both its older, absolutist forms as well as its contemporary forms – state – sponsored paternalism, for instance, or unlimited majoritarianism. One of liberalism’s most celebrated causes, in both its classical and its contemporary manifestation, is to defend individual judgment and conscience against aggressive majorities and the state apparatus at its command. Public institutions and public opinion alike are typically viewed with a measure of suspicion, even as in other respects the public sphere continues to be conceived in modernity largely as it had been for the Greeks – as the domain of sovereign authority, rationality, freedom, and civil association.

• More recent times have witnessed an emerging preoccupation with the value of privacy, a narrower realm of concern than that which occupied classical liberals, albeit one directly related to and entailed by traditional liberal concerns. James Fitzjames Stephen, Samuel Warren, and Louis Brandeis, writing in the latter nineteenth century, began to speak of a right of privacy as a method of protection against such emerging realities as an intrusive press and technological advances that made it increasingly possible to trespass upon “the sacred precincts of private and domestic life”.

A RIGHT OF PRIVACY?

Feminism and public /private

• „Feminists want to do away the whole public/private dichotomy as it has been understood in the past. Thus feminists stress that they do not intend to have the state insinuating itself into the most intimate parts of people’s lives. They are instead emphasizing that the state must stop ignoring the unbelievable abuses that have been protected in the name of privacy; this is, they believe,

• a position that is not captured by the public/private distinction as it has been known and used”.

• It is not privacy itself, then, or the separation of public and private spheres that is the source of the problem but the ideological uses to which the distinction has been put.

Judith Wagner DeCew

• „We need not be pushed to agree that there should be no private realm within which women can live their lives free from state policing and intrusion”.

• What becomes of the private sphere, and the distinction between public and private, when we concede the feminist argument? If these two realms of social life are no longer conceivable as radically opposed, must the distinction collapse altogether such that human affairs as a totality would fall under the unified category of politics, or „the political”?

• Among radical feminists, the answer often appears to be that a distinction in any form – dichotomous or otherwise – is irredeemably ideological, from which it follows that a right of privacy or a private sphere in any form possesses no moral or political legitimacy whatever. MacKinnon, for instance, speaks bravely of the need for feminists to „explode the private”, while leaving the implications of this maneuver largely unstated.

• What specific consequences for public policy follow from exploding the private sphere? Where, for example, does it leave feminists arguments for abortion which often speak of reproductive matters as covered under the privacy umbrella? Indeed. It was precisely such an argument that the U.S. Supreme Court cited in its decision in Roe v. Wade to decriminalize abortion.

• It is equally unclear exactly how seriously such declarations are meant to be taken. Whether the radical feminist proposal to explode the private is to be understood at face value or regarded as mere hyperbole is unclear, particularly to the unitiated.

One of the radical feminist claim:

• „The claim is not the personal and political are interrelated in important and fascinating ways previously hidden to us by sexist ideology and practice; nor that the personal and the political may be analogous to one another along certain axes of power and privilege, but that the personal is political. What is asserted is an identity, a collapse of the one into the other” (Jean Benthke Elshtain).

• We can give you the same argument (Carole Pateman’s interpretation): „The most popular slogan of today’s feminists movement is the personal is the political, which not only explicitly rejects the liberal separation of the private and public, but also implies that no distinction can or should be drawn between the two spheres”.

• If this interpretation is correct, the radical feminist program calls for a thoroughgoing rejection of the private, leaving us with an undifferentiated political sphere.

• If there is a single proposition to which all of these feminists would agree concerning the distinction between the public and the private, it is that the distinction as traditionally conceived has served to conceal or rationalize relations of power between men and women and that redressing the matter requires a fundamental rethinking of the relation of the personal and the political so that issues of gender inequality may see the light of day.

• It is a proposition to which most nonfeminists would likely also assent. Yet where the radical program collapses the public/ private distinction altogether, other feminist and nonfeminist scholars prefer to redraw the boundaries or reconceptualize the distinction in ways that remove vestiges of ideology. Indeed, it is often feminist scholars themselves who argue most effectively on behalf of preserving private life from a potentially totalitarian public order.

• „If there are no distinctions between public and private, personal and political, it …..follows that no differentiated activity or set of institutions that are genuinely political, that can serve as common bases of order and purpose in a political community, exist. What does exist within such a collapse of public and private is a vision of pervasive force, coercion, and manipulation(…).

• There are few alternatives in such a world: one is either victim or victimizer, oppressor or oppressed, triumhant or abject. Politics itself, as a differentiated sphere of human activity, disappears in this yearning for a totalistic solution to all human woes, a thoroughgoing fusion of all principles”.

• If the injustices to which radical feminism seeks a remedy are forms of power that consign women to subordinate positions in social life, the remedy is unlikely to come in the form of a power more onerous and totalistic than what it would replace. As a history regularly shows, a public order that reaches into every corner of human affairs give rise not to relations of equality between persons but to a general suppression of human freedom and equality alike.

Privacy is an essential part of the complex social practice by means of which the social group recognizes – and communicates to the individual – that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. And this in turn presupposes that he believes that the concrete reality which he is, and through which his destiny is realized, belong to him in a moral sense.