Brenna Bhandar – Private Publics: juridical conceptions of the public good


Event Date: 30 April 2014
The Institute of Advanced Study
Millburn House
Millburn Hill Road
University of Warwick Science Park

The Kent Law School presents:

The Public Life of Private Law

An ESRC Seminar Series

Seminar 4: Protest, Precarisation, Possibility

Increasingly, private law appears in the the government of unruly political movement and resistance – through the privatisation of public space and the designation of protest as trespass; through the contractualisation of public services and the discipline of labour; through the generation of private spheres where government power is deployed in unanticipated ways.  How should we characterise the experience of government through private law? What vulnerabilities does  private law highlight in those it governs? To what extent does private law confer overlooked capacities on troublesome actors, which can generate new strategies of resistance?

Brenna BhandarPrivate Publics:  juridical conceptions of the public good

The concept of the public, particularly as it relates to the notion of public interest, is amorphous; its meaning and contours ill defined. The concept of the public appears in the guise of the public interest, informing both criminal and civil law, and government policy. The concept of the public good undergirds social welfare law; and the notion of public benefit defines the parameters in which Third Sector private institutions can benefit from state subsidies. In the face of legal judgments that justify punitive police action and harsh sentencing on the basis of “public interest”, one may well wonder who and what constitute this “public”, and whose interests are being defended. The notion of the public as a particular constituency of citizens and non-citizens, as the space that shapes public action, discourse and politics, is a commonly held perception, perhaps even an expectation, that apparently has little to do with the juridical contours of this concept.

In this paper, I argue that the predominant notion of the public historically developed in the common law tradition is reminiscent of the agora (as a public and political space open to male landowners and the elite) rather than a commons. The public, with the brief exception of state social welfare policies, has historically made reference to landowners in 18th and 19th century parlance, and in a contemporary idiom, the tax-paying and employed classes.  I argue that there are four broadly identifiable categories of “public” that primarily revolve around the need to secure private rights (namely property, but others parasitic on property, such as privacy). The first category includes public interest and public immunity as it relates to governance. Putting a break on state action that might breach the public interest, defined by such things as the right to privacy, this notion of ‘the public’ posits the state in opposition to a public defined by private, individual concerns. The second category includes a concept of the public that is negatively defined as a threat to private interests and state security, embodied in public offences and order legislation, and is primarily concerned with police powers. The third category includes a notion of the public defined by universal access to education, health and housing. In this third category, I argue that we witnessed a short-lived but social democratic and progressive conceptualisation of the public good, which lasted approximately 40 to 50 years during the 20th century. The fourth and final category relates to the charitable concept of public benefit, where the concept of the public includes (and indeed, promotes) the private interests of the wealthy. Public in the charitable law context is juxtaposed with another category, that of the poor. This general taxonomy of different concepts of the ‘public’ demonstrates how “public interest” has overwhelmingly been shaped by the desire to protect and securitise variously inflected private interests.


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