The Stages of the Decline of the Public/Private Distinction

Kennedy, Duncan

doi:10.2307/3311974

Cited by 132 publications

(23 citation statements)

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“…As Duncan Kennedy summarised in 1982 the history of legal thought since the turn of the century is the history of the decline of a particular set of distinctions -those that, taken together, constitute the liberal way of thinking about the 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…" (Kennedy 1982(Kennedy , 1349 By the time Kennedy wrote his paper, the critique of the public-private distinction as a way of thinking about the law was so extensive that he even classified it into six predictable stages. First, he claimed, the divide is challenged by difficult borderline cases; second, intermediate concepts are developed to deal with those borderline cases; third, the distinction loses its explanatory value and collapses; fourth, the distinction is turned into a "continuum" where a balancing process is used to develop different legal responses to different cases depending on where they are on the continuum between public and private; fifth, legal actors start repeating certain predictable arguments in favour of classifying conduct as public or private, whatever their preferred outcome is ("sterotypification"); sixth, we begin to see that certain conduct can be both public and private depending on our perspective ("loopification").…”

Section: Horizontal Effect and The Public-private Distinctionmentioning

confidence: 98%

“…Stage five, stereotypification (Kennedy 1982(Kennedy , 1353(Kennedy -1354, is related to a basic legal realist insight: describing an activity as public or private is not neutral. Instead, the jurisdictional or substantive legal consequences that we attach to describing the activity as public or private are what guide that decision in the first place.…”

Section: Two Steps Furthermentioning

confidence: 99%

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The Public–Private Distinction, Autonomy and Free Movement: Unpacking the Assumptions

Mataija

2013

Global Jurist

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This paper discusses the assumptions behind an evergreen issue of EU law -the so-called horizontal effect of the EU Treaty free movement rules. It is usually claimed that the use of those rules to impose duties on individuals should be limited in order to protect private autonomy. Debate on this issue is largely confined to how far those limits should go. This paper takes a step back and questions the central assumptions made both by legal practice and by scholarship: first, the public-private distinction as a basis for applying the EU Treaties; second, the broad argument for "private autonomy".

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Section: Horizontal Effect and The Public-private Distinctionmentioning

confidence: 98%

Section: Two Steps Furthermentioning

confidence: 99%

The Public–Private Distinction, Autonomy and Free Movement: Unpacking the Assumptions

Mataija

2013

Global Jurist

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“…He distinguished six stages of transitions that a category (or "distinction") endures, from being robust to being in decay (Kennedy 1982(Kennedy , 1349(Kennedy -1355:…”

Section: The Decay Of a Categorymentioning

confidence: 99%

Rethinking Constitutionalism: Using Epistemology to Show the Inadequacy of the Public/Private Distinction

Mancilla

2017

Global Jurist

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The public/private distinction came to be in the 16th and 17th centuries as a form of a limitation of political power and structuring of social interactions -it is a product of its own time and in Western thought it is seen as a given. Does it still hold? In the first part of the paper I intend to offer a reconstruction of the public/private distinction, which I will then criticize by means of constructivist epistemology, i. e. the statement that knowledge is created by a cognizing subject and transmitted along to others. In the last part I then offer an alternative reconstruction, which in light of phenomena like globalization and technological advancement, centers on the mobility of subjects and resources. With the use of cognitive science, I will demonstrate that the distinction between private and public that is put at the center of Western thinking is but a construction, the meaning of which is created (and negotiated) in a given society. The reader will be persuaded that even if this alternative framework is not a suitable substitute for the public/private distinction, a serious discussion of the latter's shortcomings must take place.

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“…Legal progressives and realists in the first half of that century challenged dichotomies such as public and private, state and society, and law and politics that underlay classical legal thought as politically and historically contingent. They sought to expose how these antinomies redistributed wealth and power behind the façade of neutrality (Kennedy , ; Grey ; Horwitz ). Despite their successes in undermining the notion of objectivity in categorical modes of analysis in private and constitutional law, the antinomic framework nevertheless endured in criminal law.…”

Section: Antinomies In Criminal Legal Thoughtmentioning

confidence: 99%

Antinomies and the Automobile: A New Approach to Criminal Justice Histories

Seo¹

2013

Law soc. inq.

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In the twentieth century, the antinomy of freedom and coercion served as the dominant paradigm for understanding issues of crime and punishment. Roscoe Pound in Criminal Justice in America (1930) and Herbert Packer in The Limits of the Criminal Sanction (1968) described a tension between the values of individual liberty and general security to explain the problems with the justice system and the public's disagreements over their solution. Historians of twentieth‐century criminal law have also adopted this framework to explain causation and change. This essay argues that an antinomic perspective of criminal justice history, while useful, has obscured important historical questions. A focus on social changes, such as the transformations that the automobile brought about in the commission of crimes and police practices, instead of on contrasting values, offers a different account of how proceduralism became inextricably tied to notions of American freedom in the twentieth century. This approach also historicizes the “paradigm of antinomies” and shows how people in the past, like Pound and Packer, mobilized dualistic thinking, which shaped a criminal legal culture based on an antagonism—both real and perceived—between citizens and law enforcement.

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The Stages of the Decline of the Public/Private Distinction

Cited by 132 publications

References 0 publications

The Public–Private Distinction, Autonomy and Free Movement: Unpacking the Assumptions

The Public–Private Distinction, Autonomy and Free Movement: Unpacking the Assumptions

Rethinking Constitutionalism: Using Epistemology to Show the Inadequacy of the Public/Private Distinction

Antinomies and the Automobile: A New Approach to Criminal Justice Histories

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