DOI: 10.4324/9780415249126-S047-1
Version: v1,  Published online: 1998
Retrieved March 17, 2018, from

3. Abuses of the public–private distinction

The public–private distinction has been improperly used to justify social policies that maintain power relations and leave defenceless people exposed to conditions that, if recognized as a public concern, should seem unacceptable. For example, exploitation and abuses of employees long went unchecked and legislative efforts to protect workers were overturned by courts on the basis of laissez-faire policies grounded in large part on the notion that private property should not be subject to public control. Even today labour unions in many countries are restricted on the basis of a public–private distinction: many aspects of the work environment and decisions related to these concerns are removed from collective bargaining because such issues are said to involve private management discretion that should not be meddled with by the public.

Racism and discriminatory decisions based on prejudice were until recently defended as a private prerogative, not to be interfered with by the state. Even as US courts began to protect the rights of African-Americans, the public–private distinction was used to limit review of racial discrimination to instances in which ‘state action’ could be found. ‘Private’ discrimination was not forbidden by the Constitution. Notions of privacy continue to limit the scope legislators give to employment discrimination laws, often exempting employers in small, more private-seeming establishments. The British Race Relations Act (1965), which forbids discrimination by anyone serving ‘the public’, was found not to protect against discrimination by a so-called private club that chose members ‘by nomination and personal selection’ (Race Relations Board v. Charter and Others, UK 1973).

The supposed privacy of the family has shielded brutality and abuse from public scrutiny and redress. In many areas of the world a special exemption to the rape laws withdraws protection from women who are married to the man who forces sexual intercourse upon them, no matter how brutally he does so. Many criminal and civil laws against physical assault have similar exemptions when the victim is the wife or the child of the perpetrator. Where the laws do forbid violence within the family, notions of family privacy nevertheless often limit the effectiveness of the enforcement of these laws.

Of course, there are those who would defend these uses of the public–private distinction as properly protective of private property, personal choice and family privacy. One reason that privacy needs to be protected, they could argue, is that individual cases arise in which the urge to intervene will be great, yet overall in the long run, non-intervention is to be preferred.

A second kind of abuse of the public–private distinction occurs when there is slippage between the descriptive claim that something is either public or private and the normative claim that it should be treated as public or private. This slippage leads to circular arguments and to efforts to foreclose discussion of the advantages and disadvantages of the policy advocated.

Citing this article:
Olsen, Frances. Abuses of the public–private distinction. Privacy, 1998, doi:10.4324/9780415249126-S047-1. Routledge Encyclopedia of Philosophy, Taylor and Francis,
Copyright © 1998-2018 Routledge.

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