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This chapter explores common understandings of the nature of the public and the private, and its relationship to law through the public/private divide. It departs from a commonplace that the public/private divide is a relative and flexible phenomenon, which does not reveal any ‘truth’ about the world, challenging three common assumptions about the public/private divide in the law. These assumptions are that there is or should be no cross-fertilization between the meaning of the public in the various instances of the divide scattered across legal systems; that its expression in the law is necessarily political or ideological; and that the divide can be dispensed with when it hinders the achievement of particular goals such as the effective protection of human rights. Focusing on one expression of the public/private divide in the law — s. 6 of the UK's Human Rights Act 1998 — it is argued that the practice of adjudication of the divide in the law reveals a deeper-rooted sense of the public and the private, which permeates the legal system which is more stable than the commonplace of its radical relativity suggests. In the light of this more structural understanding of the public, there is necessarily a measure of cross-fertilization between particular instances of the divide in a legal system, that it is less political or ideological than is claimed, and that its elimination can be extremely problematic, particularly for the achievement of effective human rights protection. The chapter concludes by characterizing this deeper structure of the public/private divide in terms of a ‘legal archetype’, and identifies the role of positive law in relation to this archetype as a parergon.

This chapter explores the public-private divide with regards to the development of occupational, professional or firm-based pensions in Britain after the Second World War, and how these were accommodated within state schemes. The first section traces the debate surrounding British pension reform in the 1960s, in the period following the introduction of the State Earnings Related Pension Scheme. The second section briefly describes a history of other European pension developments in the same period. The third section offers a comparative overview of these developments. It is argued that when all forms of political and government intervention are taken together, the distinction between public and private in this area remains arbitrary and eclectic.

The fundamental and long-established distinction between public and private law on the Continent developed from Ulpian's distinction in Justinian's Digest, and is thus ancient in origin. This introductory chapter contrasts the recent appearance of institutional, substantive, and procedural manifestations of a comparable public/private distinction in English law through the development of administrative tribunals, public law principles, judicial review procedure, and the Crown Office List of administrative judges. It explains the need for a historical and comparative study of the recent English distinction and the distinction in France's leading system of administrative law, to address issues in the ongoing debate on the late emergence of a significant public/private divide in English law, and to help fill a persisting gap in the related legal literature. The chapter explains its focus on public law in the sense of administrative law and concludes by providing a preview of the book's argument in later chapters.

The essays in Part III of the book, on liberal constraints and traditionalist education, argue for a more regulatory conception of liberal education and emphasize the need for some controls over cultural and religious educational authority. Walter Feinberg’s essay, on religious education in liberal–democratic societies in relation to the question of accountability and autonomy, takes up the issue of educational constraints with respect to religious schools in such societies. While he allows that religious education need not be inconsistent with liberal goals, and can find reasons why some liberal societies feel it appropriate to provide public support for religious schools, he argues that certain conditions can render such support tyrannical and unwise. He concludes that if the conditions are appropriate for public support of religious schools, then there should also be significant public control. After an introduction in Section 14.1, the chapter has six further sections: Section 14.2 discusses some of the potential lines of conflict between religious liberal education and public (common) education; Section 14.3 examines a number of arguments that have been advanced in support of public funding for religious schools; Section 14.4 looks at a potentially fundamental reason for denying public funding for religious schools – that it would be tyrannical to take tax funds from one believer in order to advance the beliefs of another – and the implications as regards the First Amendment to the United States Constitution; both Sections 14.4 and 14.5 suggest some of the conditions that need to be satisfied in order to supply this funding – primarily that it must be predicated on the school advancing individual and social autonomy; Section 14.6 briefly suggests what such an arrangement might entail for the traditional way in which the public/private divide is conceived; Section 14.7 concludes.

This chapter presents answers to questions about how to apply the principles of just war theory to contemporary conflicts in which private military contractors (PMCs) figure significantly. It begins by discussing the public/private divide, a concept that itself crosses several theoretical divides. The divide between public and private spheres is one with political, economic, and social implications. Moreover, the relative significance of each of these spheres has changed over time, particularly with the emergence of the liberal tradition and the market. Despite these differences, there is a clear core of privacy that shields certain issues and actors from public view. This overlap means that each of these traditions points to the existence of a private sphere in which the concept of privacy minimizes public scrutiny. When applied to the international system, the public/private divide mirrors the division between state and nonstate actors. Just as in the other theoretical formulations of the public/private divide, events within the private sphere of the international system are obscured relative to those in the private sphere. This international public/private divide generates many of the problems discussed in previous chapters by shielding the activities of PMCs from public scrutiny. To the extent that these PMCs are involved in an activity that has been defined as a public enterprise, their position on the private side of the public/private divide poses real difficulties. The chapter concludes by considering strategies for bridging the public/private divide for the purposes of applying just war norms to privatized war.

This chapter unpacks the three perspectives from which the notion of Europeanization is usually addressed and, in this way, establishes a structure which informs the rest of the book. The chapter reveals a central theme of the work which is that equating the Europeanization of contract law with harmonisation and homogeneity ignores the EU’s multi-layered architecture of the EU legal order and the intricate interplay between the various levels of governance at which contract law operates. The chapter also explores the nature of private law and the extent to which transnational (EU) contract law challenges private law’s classical features and traditional assumptions about its relationship with the nation state. Although the functionalist, policy-driven EU contract law unsettles orthodox understandings of the ‘private’ and the ‘public’, the chapter concludes by identifying a number of additional factors (e.g. Lex Mercatoria) that have contributed to the transformation of private law.

The division between public and private depends upon our social and political values because it forms part of our general concern with the proper limits of governmental power in a liberal state. The divide also shapes our values because it informs what we can expect, or demand, of people given their public or private status. This chapter explores the public-private divide as a crucial meeting-point between criminology, political philosophy, and criminal justice practice. It argues that the line between public and private is always dynamic and that, as a consequence, there can be no simple way to evaluate the rights and responsibilities of private actors within a criminal justice system.

This chapter offers a normative assessment of the political risks and diffuse democratic costs related to the blurring process, and considers its cumulative effects from the standpoint of democratic theory. It points at the role of the public sphere's autonomy as a critical condition for democratic citizenship. Because this gray area remains largely shielded from most forms of political and professional oversight, it has become a new democratic “black hole” in which professional intermediaries — lawyers, consultants, and so forth — thrive and prosper. When confronting this extraterritorial zone that has grown up at the core of political systems, and the corrosive effects of its expansion, democracies appear to be seriously underequipped. The blurring of the public–private divide not only weakens the capacity to produce a “public interest” that rests at bay from market asymmetries, but also the very ability to conceptually identify what such a “public interest” may be. This may be one of the biggest challenges ahead for neoliberalized democracies.

This chapter examines the meaning of public law in and through its contrast with private law. It argues that there is no single, comprehensive, compelling, or doctrinally dispositive way to distinguish public and private juridical domains, just as there is no such clean distinction between public and private as general terms of reference. However, this fact does not render the distinction meaningless or without use. Rather, the many distinctions between public and private law map onto a series of more specific and sometimes cross-cutting oppositions to do with different types of actions, goods, interests, and institutional locations, and all such distinctions remain significant within legal theory and practice.

This introductory chapter provides an overview of the boundary between the public and the private, which is fundamentally different from other sectoral and professional boundaries. It conveys a whole set of representations and expectations pertaining to the autonomy of state-actors (whether politicians, bureaucrats, judges, or regulators) as they engage in their government activities; it also sets out procedures of deliberation and decision-making that are different on either side of the line, thus effectively determining the social space in which citizenship and equal treatment will hold sway. It may certainly be tempting to consider that such sensitivity to the public–private divide is idiosyncratically French as France has long epitomized the “strong state” par excellence, spearheaded by a ruling elite of lifetime civil servants. Indeed, it is the deep-seated sensitivity to the autonomy of the “public sphere” that makes France a particularly heuristic terrain when it comes to tracing the encounter between Western states and neoliberalism and revealing the transformative effects of the expanding public–private fault line. The chapter then considers corporate lawyers as tracers of the neoliberal turn of the French state.

This chapter examines pension reform in the UK. It argues that future reform of the UK pension system is unnecessary to make it sustainable in terms of costs. Forecast expenditures can be met without tax increases due to large cuts to the state pension system in the last 20 years. However, whether the current system is politically sustainable remains uncertain. Given that a rising percentage of the electorate will be aged over the state pension age, what they expect with regards to retirement income may impact current pension system.

This chapter discusses changes in the classical public–private divide under the new conditions of globalization, new technologies, and public–private cooperation. General public law and the public–private divide have been crucial in the evolution of rule-of-law regimes and in the development of welfare and regulatory states. It is argued that vital developments within the state, and by increased internationalization and globalization, have contributed significantly to changes in the classical forms of public law. Some examples are further analysed: the expansion of markets and public regulation has led to closer and more intensive interactions between the corresponding spheres of law. Markets are increasingly used as mechanisms of regulation. The expansion of international and European economic law has been vital in the changing interface of public and private law. The regulation of the Internet and of new biotechnologies offers further examples of new forms of public law and changes in the public-private divide.

Domain-differentiation suggests that individuals are well equipped to hold different commitments and beliefs in different domains of their lives. Domain-differentiation is, this chapter argues, a precondition of moral reasoning and communication across difference. This is contrary to the claims of MacIntyre, who suggests that genuine moral discourse across difference is futile. This chapter argues, conversely, that individuals can develop a habitual disposition toward public reason in the sphere of public, political discourse even when their personal convictions provide no doctrinal reasons for doing so. This chapter suggests that we can and should exploit this possibility of developing such a habitual disposition toward public reason amongst the citizenry, as doing so is the only way to ensure the inclusion of many true believers in the process of public justification.

This chapter argues that the role of the National Association of Colored Women in early law-related civil rights activism should be reconceptualized to emphasize the importance of African American club women's work in pushing the boundaries of the public/private divide. These activists built private social welfare institutions to serve African Americans' communities excluded from the benefits of the emerging social welfare state—as a first step that utilized the avenues for agency presented by the political conditions of the times—and then often followed up these efforts with requests that the public institutions of the state take over or fund institutions built through private, voluntarist efforts.

Gender activists and scholars, both domestic and international, must now confront the fact that the dominant postwar framework in and through which we have approached equality and freedom is in disarray. The transformation in respect of governance provoked by the normative and institutional assaults of neoliberalism has revealed how much feminist engagement has depended on foundational assumptions about the role of the state, the possibilities of law, and the nature and trajectory of the social contract–towards greater equality and inclusion–that are either passing away or under deep challenge. Probing the effects of historical preoccupations and blind spots such as the focus on public law activism and constitutional and human rights, this discussion will venture some thoughts about productive points of engagement now, arguing that enormous costs, as well as benefits, are at stake in the area of economic governance.

Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a number of such factors, which influence the likelihood of the use of comparative reasoning within judicial decision-making at the national level. The factors are grouped into four areas: general, institutional, procedural, and human factors. The closing two sections of this chapter discuss two specific, domain-dependent issues: first, whether it makes any difference, for the likelihood of the use of comparative reasoning, if the dispute at hand pertains to the area of private law or public law. Secondly, the final section addresses the same question with respect to the area of constitutional adjudication and human rights.

Reflections on the movement towards a ‘publicization of private law’ are often presented as narratives of encroachment of a public law mentality into private law. Conversely, discussion on the movement towards the ‘privatization of public law’ is also presented as a narrative of encroachment running in the opposite direction. This chapter shows how these narratives rest on an oversimplified account of the relationship between, on the one hand, the underlying normativity of the public and the private domains of social action and, on the other, the normativity of public and private law. A more complex (and less naïve) understanding of that relationship would allow for a better understanding of both movements. As the argument goes, some of the central underlying normative assumptions of law (in general) do not overlap significantly with the broader normative assumptions embedded in the distinction between a public and a private domain of social action (as it is often assumed). Once those different normative assumptions are laid bare it is possible to re-imagine the ‘publicization of private law’ as a narrative of fulfilment, rather than a narrative of encroachment.

This chapter analyzes how Bangladeshi American women and teenage girls in Hamtramck renegotiate conceptualizations of the public-private divide through ongoing interpretive and explorative spatial practices while referencing religious and cultural frameworks. It discusses how Bangladeshi women across generations organize the gendering of spaces within paid labor, public and private celebrations, streets, mosques, home-based religious gatherings, and schools. The analysis centers on how Bangladeshi women in Hamtramck are self-consciously and actively engaged in a process of negotiating their relationship to urban space, searching to interface with the city and its institutions in ways that maximize their sense of mobility, mastery, and centrality within public, semi-public, and domestic spaces of the city. In doing so, they advance new agendas of cultural citizenship, thus encouraging municipal environments and institutions to become more democratic spaces that represent and uphold the values of those who participate in them.

This chapter documents the emergence of the Liverpool Road Railway Station counter-project in Castlefield, Manchester, and the alternative representations of urban space promulgated by the historic preservation societies that underpinned it. Evidence is presented of the contested nature of historic space within the public sector and the movement of the counter-project into the policy mainstream is specified. Several unlikely and surprising coalitions of interests, which struggled to assert the revalorisation of historic industrial urban space, are uncovered through archival and interview research. Castlefield’s emergence from relative obscurity is illuminated using a variety of original data sources. Urban space in Castlefield is revealed to contradict any simplified public–private binary divide.