36 Buff. L. Rev. 237 (1987)
Public-Private Distinction in American Law and Life, The

handle is hein.journals/buflr36 and id is 247 raw text is: The Public-Private Distinction
in American Law and Life
ALAN FREEMAN AND ELIZABETH MENSCH*
N OTHING is more central to our experience in American culture than
the split between public and private.' It is the premise which lies at
the foundation of American legal thought, and it shapes the way in
which we relate to each other in our daily lives. We consistently take for
granted that there is both a public realm and a private realm. In the
private realm   we assume that we operate within a protected sphere of
autonomy, free to make self-willed individual choices and to feel secure
against the encroachment of others. Private law, for example contract
law, serves as a helpmate in this realm, facilitating and securing the au-
tonomous world of private decision-making. In contrast, the public realm
is a world of government institutions, obliged to serve the public interest
rather than private aims. For the most part the public realm is accounta-
ble to the private and obligated to limit its intrusion into the world of
private choice. Occasionally, however, it is supposed to override the pri-
vate sphere, either to serve a greater public good or to solve problems
that are poorly handled by private decision-making.
* Professors of Law, Faculty of Law and Jurisprudence, State University of New York at Buf-
falo. Earlier versions of this essay were presented at the City University of New York School of Law
in April 1986, at the Cornell University School of Law in November 1986, at the University of
Toronto Law School in October 1987, at Yale Law School in March, 1988, and at Osgoode Hall Law
School in April 1988. The authors are grateful to Sara Nichols for her thoughtful and helpful
efforts. An earlier version of this Article appeared in TiEKUN, Vol. 3, No. 2, at 24 (1988).
1. That our discussion is about a peculiarly American version of public-private was emphasized
to us by David Fraser, from his Canadian perspective. It is not his position that Canadians do not
draw the public-private line. They simply draw it in a different place. But where they draw it indi-
cates a qualitatively different ideological structure, one in which the public is experienced more
directly by people. It is also experienced more frequently. While in many, if not most instances, this
experience is little more than welfare statism, the room for an alternative, more political-communi-
tarian experience is there, and is lived. For a fuller account of his position, see Fraser, And Now for
Something Completely Different: Judging Interpretation and the Canadian Charter of Rights and
Freedoms, 7 WINDSOR YEARBOOK OF AccEss TO JUSTICE (1988) (in press).
Jane Smith, a former student, reminded us that one's experience of public-private in American
culture may well differ according to one's situation with respect to race, gender, or class. For further
discussion of this issue, see R. SENNETT & J. COBB, THE HIDDEN INJURIES OF CLASS (1972);
Merry, Concepts of Law and Justice Among Working-Class Americans: Ideology as Culture, 9 LEGAL
STUD. F. 59 (1985).

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