Public/Private Distinction
Leslie P. Francis
The view that there is a line to be drawn between areas of human life open to social inspection or regulation, and areas of human life immune to such scrutiny.
Since the publication of J. S. Mill’s On Liberty in 1859, the distinction between public and private spheres has been a mainstay of liberal political theory. The distinction has figured prominently in arguments such as Mill’s that special kinds of information or choices ought to be protected from government interference. In business ethics, for example, the distinction plays a central role in controversy over whether aspects of an employee’s life outside the job are proper subjects of employer intervention. The public/private distinction has also been crucial to the view that a range of social institutions – markets, families, or churches, for example – can and should operate without government interference.
The line between public and private has been drawn descriptively, legally, and normatively, and there have been frequent confusions among these levels of delineation. Mill drew the line descriptively in terms of the effects of actions: actions which affect only oneself are self regarding, but actions which have consequences for others are other regarding. Noting that there are few actions utterly without ripple effects, others have drawn descriptive lines between what is seeable by others and what is hidden or unseen, or between what has been traditionally regarded as intimate and what has not.
In law, the public/private distinction has served to identify actors of different types. In the United States, for example, state employees’ managers have special constitutional obligations to respect rights and may be sued for damages if they do not. The public/private line has also been used to characterize places. Again in the US, if a shopping center is a public forum, then it is subject to constitutional claims, such as the right of free speech on the premises. The public/private distinction also has been drawn between types of law: contract law, property law, and tort law are generally characterized as ‘‘private law,’’ governing arrangements among individual actors; criminal law, administrative law, and environmental law are matters of ‘‘public law,’’ structuring affairs between individuals and the government.
There are many different normative accounts of what ought to be protected as private. One view of privacy centers on information about the individual that ought to be immune from scrutiny by others: health records, financial information, information about group affiliations and friendships, juvenile offense records, and the like (see information, right to). Another account focuses on spaces – homes, bodily cavities, cars, purses, or desk drawers – that ought to be protected from intrusions without consent. Still another account looks to liberties, such as choices about marriage, reproduction, education, art and literature, or religion, for insulation from interference.
The public/private distinction, in all of its permutations, has come under fire from both the left and the right as a problematic manifestation of liberal individualism. Some critics argue that the distinction is meaningless; others, that it marks out many different continua on which we might locate social relation ships. Other critics contend that insistence on a line between public and private results from and protects certain entrenched interests against others. Communitarian critics argue that decisions often defended as private, such as what movies to see or whether to have an abortion, threaten the fabric of community and contribute to modern alienation. Economic leftists argue that the market is not a private affair; legal choices such as whether to treat employer–employee relationships as matters of private law have important consequences for the structure of public labor relations. Feminists argue that institutions such as the family have oppressed women, and that insulating these institutions from public scrutiny deepens that oppression. Liberals reply that recognition of a private sphere in some form is crucial to the protection of liberty and self respect. Perhaps the most difficult question for liberals, and the one on which they most disagree, is how to view social but non governmental institutions such as markets or churches in terms of a public/private dichotomy.
See also communitarianism; feminist ethics; liberalism
Bibliography
Benn, S. I. and Gaus, G. F. (eds.) (1983). Public and Private in Social Life. New York: St. Martin’s Press.
Crittenden, J. (1992). Beyond Individualism: Reconstituting the Liberal Self. New York: Oxford University Press.
Daly, M. (ed.) (1994). Communitarianism: A New Public Ethics. Belmont, CA: Wadsworth.
Fox-Genovese, E. (1991). Feminism Without Illusions: A Critique of Individualism. Chapel Hill: University of North Carolina Press.
Gavison, R. (1992). Feminism and the public/private distinction. Stanford Law Review, 3, 1 45.
Kymlicka, W. (1989). Liberalism, Community, and Culture. Oxford: Clarendon Press.
Mill, J. S. (1859). On Liberty. Numerous editions are available.
Moore, M. (1993). Foundations of Liberalism. Oxford: Clarendon Press.
Singer, B. J. (1993). Operative Rights. Albany: State University of New York Press.
Symposium on the Public/Private Distinction (1982). University of Pennsylvania Law Review, 130, 1289 1608.