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## I. THE GREAT DICHOTOMY: PUBLIC/PRIVATE ### 1. A DICHOTOMOUS COUPLE Through two widely discussed fragments from the Corpus iuris [Institutions, 1, 1, 4; Digest, 1, 1, 1, 2], which define with identical words, respectively, public law and private law - the first "quod ad statum rei romanae specta...

## I. THE GREAT DICHOTOMY: PUBLIC/PRIVATE ### 1. A DICHOTOMOUS COUPLE Through two widely discussed fragments from the Corpus iuris [Institutions, 1, 1, 4; Digest, 1, 1, 1, 2], which define with identical words, respectively, public law and private law - the first "quod ad statum rei romanae spectat" [what refers to the condition of the Roman State], the second "quod ad singulorum utilitatem" [what concerns individual utility] - the pair of terms public/private entered the history of Western political and social thought, through constant and continuous use, without substantial changes, and ended up becoming one of the "great dichotomies" that one or more disciplines - in this case not only legal disciplines but also social and historical in general - use both to delimit, represent and order their research field, and to remain within the scope of the social sciences, peace/war, democracy/autocracy, society/community, state of nature/civil state. One can properly speak of a great dichotomy when we find ourselves faced with a distinction for which: a) dividing a universe into two spheres, jointly exhaustive, meaning that all the entities in that universe are included in them without excluding any, and reciprocally exclusive, in the sense that an entity included in the first can not be included in the second at the same time; b) establishing a division that is both total, as all the entities to which the discipline refers or could refer must enter it, and main, in that it tends to make other dichotomies coincide. In legal language, the distinction between private law and public law prevails over other distinctions, its use in different historical epochs, its strength has even been such that a philosopher of law of the neokantian orientation has even considered the concepts of private law and public law as a priori categories of legal thought [Radbruch, 1932, pp. 122-127]. The two terms of a dichotomy can be defined independently of each other, or one only is defined while the other is defined negatively (the "peace" as "non-war"). In this second case, the first is said to be the strong term, the second the weak term. The definition of public law and private law previously outlined is an example of the former, but of the two terms, the strongest is the former, in that it is frequent that "private" is defined as "non-public" ("privatus qui in magistratu non est", Forcellini) [he is private who is not in office], rarely does the opposite happen. Moreover, one can say that the two terms of a dichotomy condition each other, in that they are continually referred to each other; in legal language, the public lexicon immediately refers to the private lexicon and vice versa; in common language, public interest is immediately determined in relation to and in contrast to private interest and vice versa. Finally, within the space that the two terms delimit, from the moment in which that space is fully occupied (tertium non datur), [there is no third possibility], in turn, they delimit each other, in the sense that the public sphere reaches where the private sphere begins and vice versa. For each of the situations for which the dichotomy use is appropriate, the two respective spheres can be different - one larger, one smaller, or for one or the other of the two terms. One of the common places of the secular debate about the relationship between the public and private sphere is that, with the increase of the public sphere, the private sphere decreases; with the increase of the private sphere, the public sphere decreases: a statement that is usually accompanied and complicated by conflicting value judgments. Whatever their origin and time of birth, the classical dichotomy between private law and public law shows the situation of a social group in which there is already distinction between what belongs to the group as such, to the community, and what belongs to members, specific, or more generally between global society and smaller groups (such as the family), or also between a central superior power and the peripheral inferior powers that are relatively autonomous with respect to it, when they do not depend entirely on it. In fact, the original distinction between public law and private law is accompanied by the statement of the supremacy of the former over the latter, as evidenced by one of the fundamental principles that govern any order in which the great division is valid, the principle that "ius publicum privatorum pactis mutari non potest", [public law cannot be changed by private agreements], [Digest, 38, 2, 14] or "privatorum conventio iuri publico non derogat", [a convention between private persons does not detract from public law], [ibid, 45, 50, 17]. Despite secular debate, fueled by the variety of criteria on which it has been justified or believed to be justified, the division of the two spheres, the fundamental criterion remains that of the various subjects to which the general notion of utilitas [utility] may refer: in addition to the singulorum utilitas [individual utility] mentioned in the definition, the famous Ciceronian definition of res publica should not be forgotten, according to which it is a "thing of the people" when "people" is not understood as any aggregation of men, but as a society that is held together not only by legal ties, but by the "utilitatis communione", [common utility], [De re publica, 1, 41, 48]. ### 2. THE CORRESPONDING DICHOTOMIES The conceptual and classificatory importance, as well as the axiologic importance of the dichotomy public/private is shown by the fact that it includes, or converges, other traditional and frequently recurring dichotomies in the social sciences that complement it or that may replace it. * **Society of equals and society of unequals** Since law is a system of social relations, the great dichotomy public/private is duplicated first in the distinction of two types of social relations: between equals and between unequals. The State, and any other organized society where there is a public sphere, no matter whether it is total or partial, is characterized by relations of subordination between rulers and ruled, that is, between those holding the power to command and those who are subject to the duty to obey, which are relations between unequals; natural society, as described by natural law philosophers, or even the market society in the idealization of classical economists, insofar as they are normally taken as models of a private sphere opposed to the public sphere, are characterized by relations between equals or coordination. The distinction between society of equals or society of unequals is no less classic than the distinction between private sphere and public sphere. Remember Vico: "Omnis societas omnino duplex, inaequalis et aequalis" [1720, chap. LX]. Among the former are the family, the State, the society between God and men; among the latter are the society of brothers, relatives, friends, citizens, guests, enemies. The previous examples allow us to observe that the two dichotomies public/private and society of equals/society of unequals do not completely overlap: the family conventionally belongs to the private sphere opposed to the public sphere, or better yet, it is located in the private sphere where a more complex organization is found, such as the city (in the Aristotelian sense of the word) or the State (in the sense of modern writers); but with respect to the difference of the two societies, it is a society of unequals, because in the conventional belonging of the family to the private sphere lies the proof that European public law that accompanies the formation of a constitutional State, has considered the patriarchal, paternalistic or despotic conceptions of sovereign power private, comparing the State to a family on a larger scale, or attributing to the sovereign the same powers as the patriarch, the father, the master; lords with different titles or with different domain in the family society. On the other hand, the relationship between enemies - which Vico correctly conceives in the field of relations between equals, because international society in the abstract is considered to be a society of formally equal entities, so much so that it was compared, from Hobbes to Hegel, to the state of nature - is usually placed in the public sphere, although it deals with external public law that regulates relations between states, different from internal public law that regulates relations between rulers and ruled within a State. * **Law and contract** With the birth of political economy, from which the differentiation between economic relations and political relations arises, with economic relations understood as fundamentally relations between unequals due to the division of labor, but formally equal in the market, the dichotomy public/private appears in the form of the distinction between political society (or of unequals) and economic society (or of equals), or from the point of view of the characteristic subject of both, between the society of the citoyen (citizen) who looks at public interest and the society of the bourgeois (bourgeois) who contemplates private interests in competition or collaboration with other individuals. After the distinction between economic sphere and political sphere reappears the old distinction between the "singulorum utilitas" and the "status rei publicae", with which the private sphere and the public sphere emerged for the first time. So too, the natural law distinction between the state of nature and the civil state is recompiled, through the birth of political economy, in the distinction between economic society and political society; successively, between civil society, understood in the Hegelian, or better yet, in Marxist terms, as a system of needs, and the political state: where it must be emphasized that the line of separation between, on the one hand, the state of nature, the economic sphere, civil society, and on the other hand, the civil state, the political sphere, the political state, always transits between a society of equals (at least formally) and a society of unequals. ### 3. THE AXIOLOGICAL USE OF THE GREAT DICHOTOMY In addition to the descriptive meaning, shown in the previous two paragraphs, the terms of the dichotomy public/private also have an evaluative meaning. Since they are commonly used as opposites, meaning that an entity cannot be both public and private, or neither public nor private, in the same universe delimited by both, the evaluative meaning of one tends to be opposite to that of the other, in the sense that when a positive evaluative meaning is attributed to the former, the latter acquires a negative evaluative meaning, and vice-versa. From this point of view, two different conceptions of the relationship between public and private can be defined as follows: the supremacy of the private over the public, or the superiority of the public over the private. **The primacy of the private** The supremacy of private law is affirmed through *the diffusion and reception of Roman law in the West: the so-called Pandects* is largely private law, whose main institutions are the family, property, contract and wills. By its duration and its universality, Roman private law acquires the value of the law of reason, that is, a law whose validity is recognized independently of the circumstances of time and place that originated it and is based on the "nature of things" through a process similar to the one by which, many centuries later, the doctrine of the first economists, later called classics (just like the great jurists of the golden age of Roman law were called classics), will be considered as the only possible economy because it discovers, reflects, describes, natural relationships (properties of the domain of nature or "physiocracy). In other words: Roman private law, although originally a positive and historical law (codified in the *Corpus Iuris* of Justinian), is transformed into a natural law, through the centuries-long work of jurists, glossators, commentators, systematists, in order to be transformed again into a positive law with major codifications of principles from the nineteenth century, especially with the *Napoleonic Code (1804)*, a positive law that, however, its first commentators attribute a validity that is absolute, considering it to be the law of reason. So, for centuries private law is, by excellence, the law. Even in Hegel, Recht, without the need for other additions, means private law, the "abstract law" of the *Lineamientos de la filosofía del derecho* (Grundlinien der Philosophie des Rechts, 1821), while public law is named, at least in the first writings, Verfassung ["constitution"]. Marx, when he speaks of law and develops his critique (which today would be called ideological) of law always refers to private law whose main foundation, taken into account, is the contract between formally (although not substantively) equal entities. The law that through Marx is identified with bourgeois law is essentially private law, while public law is presented in a critical form, not so much of a kind of law, but of the traditional conception of the State and of political power. The first and greatest theorist of Soviet law, Pasukanis, will say [1924], that "the most solid core of the nebula jurídica...is... in the field of private law relations", because "the legal premise (here he should have added "private") is "the antagonism of private interests", which explains why "the fundamental lines of Roman legal thinking have survived to this day, remaining the ratio scripta [the written reason] of every commodity producing society" (trad. it., pp. 122-127). Finally, criticizing as ideological, and therefore not scientific, the distinction between private law and public law, Kelsen observed [1960] that legal relationships can be defined "as 'legal relationships' tout court as relationships 'of law' in the sense that is most proper and strict, to contrast them with relations of public law insofar as they pertain to relationships of 'power'" (trad. it., p. 312). * **Public or secret** One should not confuse the dichotomy public/private that has been analyzed so far with the same distinction in which "public" means evident, open to the public, performed in front of spectators, and "private" the opposite, what one says or does in a closed circle of people, in secret. This distinction is also conceptual and historically important, but in a system of ideas and in a historical context different from those in which the great dichotomy is inserted. So different that the great dichotomy maintains its full validity even when the public sphere, understood as the sphere of political power, does not necessarily coincide with the sphere of the public, understood as the sphere where the control by the public of political power is presented. Conceptually and historically the problem of the publicity of power is a different problem from that of its nature as political power distinct from the power of private individuals; political power is public power insofar as the great dichotomy is concerned, even if it is not public, does not act in public, hides from the public, is not controlled by the public. Conceptually, the problem of the publicity of power always served to show the difference between the two forms of government: the republic, characterized by public control of power, and in the modern era by the free formation of public opinion, and the principate, whose method of government contemplates resorting to arcana imperii, i.e., the secrecy of the State that in a modern rule-of-law State is only provided for as an exceptional remedy. Historically, the same problem distinguishes a period of profound transformation of the image of the State and of the actual relations between the sovereign and the subjects; the period of the birth of the "political public" in the sense conceived by Habermas, i.e., the one in which the institutionalized political sphere acquires influence on the government through the legislative body because "the exercise of political power is effectively subject to the obligation of democratic publicity" [1964, translation from Italian, p. 53.. **Publicity and invisible power** The history of political power understood as power open to the public can be traced back to Kant, who considers as the "transcendental formula of public law" the principle according to which "all actions concerning the law of other men, whose maxim is not compatible with publicity, are unjust" [1796, trad. it., p. 330]. The meaning of this principle is clarified when one observes that there are maxims that, once made public, would provoke such a reaction that would make their fulfillment impossible. What State could declare, when signing an international treaty, that it does not consider itself bound by the rule that treaties must be fulfilled? In reference to the reality that we have before us, what official could declare, when assuming office, that he will use it for personal profit, or to secretly subsidize a political party, or to corrupt a judge who must judge a relative of his? The principle of publicity of the actions of those who hold public power ("public" in the sense of "political") is opposed to the theory of arcana imperii, which dominated the era of absolute power. This theory argues that the power of the prince is more efficient, and thus is truer to its objective, the more it remains hidden from the prying eyes of the common people, the more it is, like the power of God, invisible. This doctrine is based on two main arguments: one intrinsic to the nature of supreme power whose actions can be more successful the faster and less predictable they are: public control, even only by a group of notables, slows down decisions and prevents surprises; the other, derived from the contempt for the common people, considered as a passive object, like the "wild beast" that must be tamed, dominated by strong passions that prevent him from forming a rational opinion of the common good, selfishly short-sighted, easy prey to demagogues who use him for their own advantage. The inseparability and therefore control of power were secured institutionally by the closed place to the public in which political decisions were made (the secret cabinet) and by the non-publication of the same decisions, psychologically, through the permissibility of simulation and dissimulation as a principle of action of the State, despite the moral law that forbids lying. The two expedients, the institutional and the psychological, are complementary, insofar as they reinforce each other: the former authorizes the sovereign to not let it be known in advance what decisions he will make and to not make them known after they have been made, or else, to disguise them, or to present them differently, that is, to simulate. Naturally, where power is invisible, counterpower is also obliged to become invisible; consequently, the secrecy of the council chamber is matched by the conspiracy of the palace plotted in secret in the same place where the sovereign power hides. In addition to arcana imperii are arcana seditionis. While the principate - in the classical sense of the word -, the monarchy of divine right, the various forms of despotism require the invisibility of power and in various ways justify it, the democratic republic - res publica not only in the sense of the word itself, but also in the sense of being exposed to the public - requires that power be visible. The place where power is exercised in all forms of republic is the assembly of citizens (direct democracy) where the process of decision-making is in re ipsa [by itself], public, as happened in the agora of the Greeks; where the assembly is the gathering of the people’s representatives, and therefore decisions could only be known by them, the assembly meetings must be open to the public in such a way that any citizen can have access to them. There are those who have believed they can establish a link between the principle of representation and the publicity of power, like Carl Schmitt, for whom "representation can only take place in the sphere of publicity" and "there is no representation that takes place in secret and hidden" so that "a parliament has a representative character only insofar as it is considered that its activity be public" [1928, p. 208]. Under this aspect, it is essential for democracy the exercise of the various rights of freedom, which allow the formation of public opinion, and in this way ensure that the actions of governments are removed from the secrecy of the council chamber, are removed from the secret places where they are kept hidden, to prevent them from being examined, judged and criticized. Just as in the process of publicizing the private, never definitively concluded, there is the opposite process of privatization of the public, the victory of visible power over the invisible never definitively ends either. The invisible power resists the advance of the visible, reinvents forms to hide and to hide, to see without being seen. The ideal form of power is that which is attributed to God, the omniscient invisible. The arcana imperii were transformed into the secret of State that in the legislation of the modern rule-of-law State is to punish the publication of acts and documents that are confidential; moreover, with this substantial difference - that against the arcanum [secret], considered as a necessary instrument of power, and therefore essential -, the secrecy of state is only legitimized in exceptional cases provided for by law. Likewise, never has the practice of concealment, through the influence that public power can have, been abandoned, by the monopolization of the mass media, especially through the unlimited exercise of ideological power, with the function of ideologies being to cover with veils or mantles the actual motivations that drive power, a public and legitimate form of the "pious lie" of Platonic origin or the “deception” of the theorists of the reason of state. On the other hand, if it is true that the public observes the power in a democratic state more than in an autocratic state, it is also true that the use of computers, which is expanding and will expand further, for the memorization of everyone’s personal files allows those who hold power to observe the public much better than the states of the past. This means that, despite the profound transformations in the relationship between rulers and ruled, induced by the development of democracy, the process of publicizing power, even in the second sense of the dichotomy public/private, is far from linear. Thus, this dichotomy, both in the sense of collective/individual (shown in paragraphs 1, 2 and 3), and in the sense of manifest/secret (shown in this paragraph), despite the change of meanings, constitutes one of the fundamental and traditional categories for the conceptual representation, for the historical representation of the value judgment, in the vast field covered by theories of society and the State. ==End of OCR for page 28==