What's private about private law?

Abstract

When lawyers turn to other disciplines in the social sciences and humanities for guidance, they usually do so in pragmatic spirit: they want answers to particular difficult questions. This pragmatic spirit might be both mistaken and philistine: mistaken if it assumes greater determinacy in other disciplines than exists in law, and philistine because this mistake, and the pragmatic spirit in which it is made, shows little or no appreciation of the disciplines invoked. It is a form of intellectual voyeurism. If we nevertheless persist with this seemingly pragmatic and possibly philistine approach, bringing it to bear on one old and apparently irresolvable issue, some determinate guidance is in this instance available. The issue, which is really a nest of issues, can be captured by a disarmingly simple question: is there any significant and fruitful way of distinguishing private from public law? The guidance from other disciplines, as lawyers often find, is on this issue somewhat unhelpful. For, although the content of the guidance is clear — there is no single meaningful distinction between ‘public’ and ‘private’, there being instead a manifold set of distinctions, drawn for quite different purposes and thus having quite different contours — it is unhelpful for lawyers’ usual pragmatic purposes.