The History of the Public/Private Distinction

The distinction between public and private realms arose out of a double movement in modern political and legal thought. On the one hand, with the emergence of the nation-state and theories of sovereignty in the sixteenth and seventeenth centuries, ideas of a distinctly public realm began to crystallize.' On the other hand, in reaction to the claims of monarchs and, later, parliaments to the unrestrained power to make law, there developed a countervailing effort to stake out distinctively private spheres free from the enicroaching power of the state.2 Natural rights theories were elaborated in the seventeenth century for the purpose of setting limits on state power, both over property and religious conscience. Rights theories were therefore not only efforts to incorporate into law what one writer has called a philosophy of possessive individualism, 3 but also to provide an important basis for arguing for religious toleration. One can trace the emergence of a distinctively public realm in various legal doctrines. By the late medieval period, for example, English law had already begun to draw a distinction between two different roles of the monarch as landowner. First were the lands the King held as feudal lord. These he could alienate as private property. But, increasingly, English law defined a second category of crown lands-in essence, public lands-which he could not alienate. Here we see an example of the gradual emergence of a distinctively public realm, which in the field of crown ownership of land finally crystallized in seventeenth century struggles over the King's power to alienate land between high and low watermark.' Taxation provides a fascinating example of the emergence of the public/private distinction. As late as the sixteenth century, English judges still analyzed taxation, not as an exaction by the