This paper explores and questions 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, that of s. 6 of the UK’s Human Rights Act 1998, it argues 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 meta-structural understanding of the public, the paper argues, 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.
It 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. As such, it argues, that positive law gives shape and definition to the public and the private in social and political life but is not part of either realm, a role similar to that of the law of the ancients as identified by Hannah Arendt.
Mac Amhlaigh, Cormac S., Defending the Domain of Public Law (against Three Critiques of the Public/Private Divide) (December 11, 2012). C. Mac Amhlaigh, C. Michelon and N. Walker, After Public Law, (Oxford: Oxford University Press, 2013), Forthcoming; Edinburgh School of Law Research Paper No. 2012-29.