The Public, the Private and the Law

Reflections on the movement towards a ‘publicization of private law’ are often presented as narratives of encroachment of a public law mentality into private law. Conversely, discussion on the movement towards the ‘privatization of public law’ is also presented as a narrative of encroachment running in the opposite direction. This chapter shows how these narratives rest on an oversimplified account of the relationship between, on the one hand, the underlying normativity of the public and the private domains of social action and, on the other, the normativity of public and private law. A more complex (and less naïve) understanding of that relationship would allow for a better understanding of both movements. As the argument goes, some of the central underlying normative assumptions of law (in general) do not overlap significantly with the broader normative assumptions embedded in the distinction between a public and a private domain of social action (as it is often assumed). Once those different normative assumptions are laid bare it is possible to re-imagine the ‘publicization of private law’ as a narrative of fulfilment, rather than a narrative of encroachment.