The public/private dichotomy has long been a dominant theme in the narrative of Western legal culture. As a descriptive account of society, this theme appears in three versions: state/civil society, state/market, and society/household. As a normative interpretation of the meaning of a bifurcated society, the public/private theme relies on notions of access/nonaccess, freedom/coercion, and interference/non-interference. The plausibility of both the descriptive and the normative conceptions of the public/private divide has traditionally rested on an opposition between sameness and difference. The public is construed as a realm of similarity: public ideals of equality, universality, and civic action are premised on the notion that citizens qua citizens are all the same. To guarantee the freedom of each as a citizen, to ensure citizens' access to the means and channels of public democratic participation, government interference and regulation is deemed just and necessary. The private sphere has been understood as one of particularity. Just as the household is the terrain of feminine specificity, so is the market configured as a space of individuality, an arena for conflict and struggle among agents oriented toward their own particular goods. In the private realm, moreover, dominance is admissible, whether configured as "natural," "chosen," or one of the risks of freedom. Attempts to regulate this dominance are often construed as interfering with the "free" and "natural" interactions of particular persons in their private lives.
From Sphere to Boundary: Sexual Harassment, Identity, and the Shift in Privacy,
Yale J.L. & Feminism
Available at: https://digitalcommons.law.yale.edu/yjlf/vol6/iss2/5