The publicprivate distinction

The distinction between public and private spheres of life has increased in importance in Western culture during the last few centuries along with the growing emphasis on individualism.1 Its importance was concretised in American legal and political discourse in the nineteenth century. As Horowitz has noted, 'One of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory law - public law - and the law of private transactions - torts, contracts, property, and commercial law.'2

At much the same time in England, John Stuart Mill produced On Liberty, published in 1859, in which he defended the freedoms of the individual against social and political control: 'There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.'3

As this suggests, the public/private distinction ensures that the legiti-macyof interference with individual action is continuallyunder scrutiny. This implies that individuals and individual action are of considerable importance in at least one sphere - the private sphere - and further, that it is a good thing that the boundary between the two spheres is maintained. Two points arise from this. First, it is not to be inferred that

1 For a collection of views on the public/private distinction, see 'Symposium on the Public/Private Distinction' (1982) 130 University of Pennsylvania Law Review 1289.

2 See M. J. Horowitz, 'The History of the Public/Private Distinction' (1982) 130 University of Pennsylvania Law Review 1423, 1424. Horowitz also links the development of the distinction with the rise of the sovereign nation state in the sixteenth and seventeenth centuries and the emergence of 'natural rights' theories in the seventeenth century: ibid., 1423. This is also noted in R. Wacks, Personal Information, Privacy and the Law (Oxford, Clarendon Press, 1989), p. 8.

3 J. S. Mill, On Liberty (Penguin Books, London, 1974 [1859]), p. 63.

placing conduct in the private sphere automatically precludes regulation of that conduct, indeed there might be strong and valid reasons to impose constraints. Most people would classify the decision to abort a genetically damaged foetus as a private matter, yet all Western governments require that abortions (if permissible at all) are carried out under medical supervision and duly reported. In this way the state seeks to prevent harm to women at the hands of unqualified individuals. Indeed, even in jurisdictions where abortion is accepted, women are frequently denied the procedure in the later stages of pregnancy because the state considers that, by that time, the potential child has a claim to an independent existence.

Nevertheless, there is considerable normative appeal in classifying conduct as private. Thus, although there is no absolute prohibition on regulation of conduct in the private sphere, there is a prima facie presumption that arbitrary interference is impermissible. The rebuttal of this presumption requires strong justification. The corollary is that conduct in the public sphere is not subject to such a presumption and that regulation in the public sphere is, therefore, both more commonplace and, a fortiori, permissible.

Second, it should not be thought that the importance attached to individuals and individual action in the private sphere dictates the location of all individual rights in that sphere. Many individual rights are found, and protected, in the public sphere. Obvious examples include civil liberties and equal protection laws. It follows that the division between the public and private spheres of life is by no means a clear-cut matter in either a literal, legal or metaphorical sense.

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