Public and Private Law

Abstract

This chapter examines some of the main arguments and raises a number of normative and historical speculations about public and private law. In particular, it discusses two primary political debates concerning the differentiation between public and private law, the first concerning the autonomy of private law and the second dealing with the desirability of privatizing public services such as prisons, security, or education. It argues that special protection is necessary for the autonomy of public law rather than private law for principled instead of pragmatic or instrumental reasons. The chapter also considers the relations between different traditions of political philosophy and the way they treat the dichotomy between the public and the private, paying particular attention to legal realism, utilitarianism and the law and economics movement, libertarianism/liberalism, Marxism, the feminist movement, the Critical Legal Studies movement, and neo-Kantian and neo-Hegelian theories.