The Stages of the Decline of the Public/Private Distinction

Abstract

Success for a legal distinction has two facets. First, it must be possible to make distinction: people must feel that it is intuitively sensible to divide something'between its poles, and that division will come out pretty much same way regardless of who is doing it. Second, distinction must make a difference: a clistinction without a difference is a failure even if it is possible for everyone to agree every time on how to make it. Making a difference means that it seems plain that situations should be treated differently depending on which category of distinction thLey fall into. When people hold a symposium about a distinction, it seems almost certain that they feel it is no longer a success. Either people can't tell how to divide situations up between two categories, or it no longer seems to make a difference on which side a situation falls. The history of legal thought since turn of century is history of decline of a particular set of distinctions-those that, taken together, constitute liberal way of thinking about social world.' Those distinctions are state/society, public/ private, individual/group, right/power, property/sovereignty, contract/tort, law/policy, legislature/judiciary, objective/subjective, reason/fiat, freedom/coercion, and maybe some more I'm not thinking of. Although these distinctions are not synonymous, they are all in a sense the same. By this I mean that it is hard to define any one of them without reference to all, or at least many of others, and that if one understands common usage of one of them, one understands, pretty much ipso facto (what a fudge!), all others. Because all distinctions that constitute liberal mode have gone through at least analogous processes of decline, it should be possible to say something in a general way about later stages

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