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Stanford Law Review

Feminism and the Public/Private Distinction


Author(s): Ruth Gavison
Source: Stanford Law Review, Vol. 45, No. 1 (Nov., 1992), pp. 1-45
Published by: Stanford Law Review
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Feminism and the Public/Private
Distinction
Ruth Gavison*
It has becomefashionableto expandthe list of villainsin social, political,
and legal thought. The list now includes not only criminalsand malfeasors
of all sorts, but also theoreticalperspectivesand complex human practices
such as language and science. In this paper I want to examine, in some
detail, the identificationof one such villain: the "public/privatedistinction."
Although my main purpose is to discuss the specific feminist challenge to
this distinction,feministshave not been the only critics of this distinction,1
nor have feministslimitedtheir criticismto this distinctionalone.2 For these
reasons,my focus on the feministchallengeto the public/privatedistinction
should be relevantand useful to those posing broaderchallengesto distinc-
tions and vocabularies.
Differentclaims concerningthe relationshipbetween public and private
realms are central to feminist theory as a whole.3 But only some of these
claims voice positionsthat may be interpretedas challengesto the distinction
itself, rather than challenges to social arrangementsdubbed "private"or
"public." One powerful,and representative,challenge to the distinction is
that presentedby CatharineMacKinnon:
For womenthe measureof the intimacyhas been the measureof the oppres-
* Haim H. Cohn Professor of Human
Rights, Faculty of Law, Hebrew University, Jerusalem.
Visiting Ben-Gurion Professor of Law, USC Law Center, 1990-92. I presented versions of this paper
at Boalt Hall, USC, and the West-Coast Fem-Crits, and learned a lot from the discussions. Special
thanks go to Bruce Ackerman, Scott Altman, Dick Craswell, Denny Curtis, Meir Dan-Cohn, Alon
Harel, Barbara Herman, David Heyd, Chris Littleton, Dan Ortiz, Tom Morawetz, Judi Resnik,
Ferdy Schoeman, Mike Shapiro, and Kathleen Sullivan.
1. For a collection of various treatments of the public/private distinction, see Symposium on
the Public/Private Distinction, 130 U. PA. L. REV. 1289 (1982). See also PATRICKDEVLIN,THE
ENFORCEMENT OF MORALS (1965) (discussing the distinction between private and public
moralities).
2. See, e.g., MargaretJane Radin, The Pragmatistand The Feminist, 63 S. CAL.L. REV. 1699,
1707-08 (1990) (stating that while both pragmatists and feminists are suspicious of the distinctions
between thoughts and actions, and theory and practice, only the feminists criticize the public/private
distinction).
3. As Carole Pateman has argued, "The dichotomy between the private and the public is cen-
tral to almost two centuries of feminist writing and political struggle; it is, ultimately, what the
feminist movement is about." Carole Pateman, Feminist Critiquesof the Public/Private Dichotomy,
in PUBLICAND PRIVATEIN SOCIALLIFE281, 281 (S.I. Benn & G.F. Gaus eds., 1983). For the
centrality of this challenge to feminism, see WILLKYMLICKA, CONTEMPORARY POLITICAL PHILOS-
OPHY247-62 (1990); SUSANMOLLEROKIN,JUSTICE,GENDER,ANDTHEFAMILY110-33 (1989).
This distinction has also been used as a means of classifying feminist theorists. See ALISONM.
JAGGAR,FEMINISTPOLITICS AND HUMANNATURE(1983).

1
2 STANFORD LAW REVIEW [Vol. 45:1
sion. This is why feminism has had to explode the private. This is why
feminism has seen the personal as the political. The private is public for
those for whom the personalis political. In this sense, for womenthereis no
private, either normativelyor empirically.... To confront the fact that
womenhave no privacyis to confrontthe intimatedegradationof womenas
the public order. The doctrinal choice of privacy in the abortioncontext
thus reaffirmsand reinforceswhat the feminist critique of sexuality criti-
cizes: the public/privatesplit.4
To assess such calls for the abolition of the public/private distinction, we
must do at least three things: explore the meaning of the challenge; ask
whether we accept the descriptive and normative judgments implicit in the
challenge; and analyze the utility of the distinction as a conceptual tool.
In Part I, I discuss the differences between internal and external criti-
cisms of distinctions. Internal challenges are criticisms of specific uses of
terms like "public" and "private" or of specific arrangements designated by
these labels. External challenges invite us to abolish or delegitimate such
distinctions altogether. Feminist analyses of the public/private distinction
include both internal challenges, which most feminists accept, and external
challenges, which some feminists endorse and others criticize or reject.
In Part II, I examine one factor which makes this particular distinction
so difficult to challenge externally: that the terms "private" and "public"
assume a variety of meanings, with differing normative implications, within
the relevant literature. Understanding and assessing both the contexts in
which the distinction is used as well as the external criticisms of the distinc-
tion requires close attention to these differences.
Finally, in Part III, I seek to explain the grounds for the feminist chal-
lenges to the public/private distinction, both external and internal. I will
conclude by reconstructing and evaluating those arguments fundamental to
the external challenge.
The feminist challenge to the public/private distinction is both insightful
and important. When the external elements of this challenge become too
sweeping, however, they become misleading and counterproductive and may
actually facilitate the devaluation of important aspects of human life that are
currently identified as "private" and "personal." Thus, studying the femi-
nist criticisms of the public/private distinction reveals both the strengths
and the weaknesses of the fashionable practice of leveling profound critiques
at the linguistic and epistemological underpinnings of political positions.

I. EXTERNALAND INTERNALCHALLENGES

Intelligible discussion about endorsing or rejecting distinctions rests on


presuppositions about reality, perception, thought, and language. As a re-
sult of these varying descriptive or normative assumptions, challenges to dis-

4. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 191 (1989).


For a detailed discussion of some of MacKinnon's views, see notes 71-104 infra and accompanying
text.
November 1992] PUBLIC/PRIVATE DISTINCTION 3

tinctions may represent many different types of statements. First, the


challengermay arguethat thereis no differencebetweenthe thingswhich are
thus distinguished,or that if there is a difference,it is not an importantone.
This challengermay concede that many people believe that there is a real
difference,and that the language reflects this belief. Such challengerswill
seek to expose the false belief by attackingboth the steps that led to it and
the linguisticstructureswhich facilitatethe assumption. This challengethus
addressesboth the best way to analyzeand constructrealityand the ways in
which languagemay help us to see (or to obscure)reality.
Other challengers,however,do not fault distinctionsfor obscuringreal-
ity. Instead,their complaintcomprisesa complexnormativeargument:The
distinctionitself plays a part in creatingor perpetuatinginjustice,in reach-
ing or justifying bad decisions, and in paralyzing the forces needed for
reform.
Here we must distinguishbetweentwo types of complexnormativeargu-
ments. The first kind of argument,an internal challenge to a distinction,
asserts that negative effects emerge from the particularway in which the
distinctionhas been drawn. Accordingto the internalchallenge,the distinc-
tion leads to society's mistakenbelief that distinctionsbetweenrealms,such
as the public and the private, are givens of social life, rather than human
determinationswhich can and should be assessed accordingto human val-
ues. Beyond this general criticism, however, this challenge acknowledges
that the distinctioncan be used in beneficialways. The second challenge,an
external criticism, claims that there is no useful, helpful, or valid way to
draw the distinction. In an importantsense, only externalchallengesreally
challengethe distinctionitself, ratherthan particularpolitical arrangements
sometimescalled "private"or "public."
An externalcriticismof the public/privatedistinctionmay appealto in-
dividuals in differentways. Naturally, those who believe that there is no
important differencebetween private and public will favor external chal-
lenges to the distinction.5 Others may be attractedto an externalchallenge
if they believe that our social structureis so pervadedby misleadingand
dangeroususes of the terms that the only path to clear thought and to just
solutions is through delegitimatingthe distinction.6 For these challengers,
questions other than those relating to the existence of differencesmay be
relevant to assessing the value of the distinction. One such question is
5. Although even one who believes that there is no differencebetween "private"and "public"
might concede that the linguistic or conceptual distinction is necessary to expose the false beliefs of
others.
6. These connections between external and internal challenges can be generalized. See Duncan
Kennedy, Form and Substance in Private Law Adjudication, 89 HARV.L. REV. 1685 (1976). Ken-
nedy maintains that much of traditional legal theory is built on a distinction between form (the use
of rules or standards) and substance (the content of the arrangement). He argues that the two are in
fact intertwined, making the distinction, with its implication of autonomy between form and sub-
stance, completely misleading. For a further example of Kennedy's thesis, see Duncan Kennedy,
The StructureofBlackstone's Commentaries,28 BUFF.L. REV. 205 (1979). For a sophisticated (and
somewhat modifying) discussion of Kennedy's arguments, see MARK KELMAN,A GUIDE TO
CRITICAL LEGALSTUDIES15-63 (1987).
4 STANFORD LAW REVIEW [Vol. 45:1

whether it is desirable to maintain the difference or to invoke it to justify


special treatment.7 Those who think that the difference is either inevitable
or desirable will be much more likely to advocate the continued existence of
the linguistic framework than those who think that the difference is undesir-
able, or that its invocation or justification wrongly presents it as inevitable.
In any event, a discussion of a distinction and its challenges presupposes
a need to distinguish between answers to questions of reality and desirability
on the one hand, and questions of linguistic and conceptual choice on the
other.8 For example, the claim that women are responsible for most of the
child-rearing in society is a description which can and should be assessed
independently of the choice of whether to label the women's realm as "pri-
vate." Similarly, whether this division of labor is desirable can and should
be assessed independently of the linguistic/conceptual choice. Nevertheless,
one's position on either of the latter questions may be affected by answers
given to the former in complex ways.

II. PUBLIC AND PRIVATE

Since the primary function of distinctions is to highlight differences, a


good question with which to begin is whether there are differences between
public and private, and, if so, whether such differences are important. A
look at the huge social science and humanities literature invoking the dis-
tinction quickly reveals that the alleged differences are of many types. This
variety of alleged differences arises because the terms "private" and "public"
occur in various senses, which are distinct though interrelated, and because
these terms typically have both descriptive and normative meanings which,
if not carefully distinguished, can lead to confusion or equivocation. A term
used descriptively in a premise, for example, often acquires a different nor-
mative sense when used to yield a conclusion.
To gain a sense of the breadth of the external challenge to the public/
private distinction, it is important to recall the many usages of these terms in
various discourses. Although a comprehensive account of such usages is be-
yond the scope of this article, a representative sample can be used to illus-
trate the pervasive and heterogeneous invocations of the distinction. To
avoid repetition, this brief survey will not cover feminist literature.
One important invocation of the public/private distinction separates

7. The standard grounds for nondiscriminationin human rights documents present an interest-
ing case. These documents usually declare that people should not be discriminated against on the
basis of race or religion. Clearly, this policy does not mean to suggest that race and religion do not
represent differencesbetween individuals. On the contrary, these documents often affirm the value
of pluralism and of cultural and ethnic differences. Instead, the claim arising from the nondiscrimi-
nation policy is that these acknowledged differencesshould not be considered relevant with regard to
the treatment of individuals.
8. I realize that this presupposition is controversial. Nevertheless, I consider the differentia-
tion of these types of questions to be an essential element of any attempt to make sense of our world.
It is compatible with many approaches to the question of the relationships between reality (natural
or social) and language. It is not, however, compatible with the approach that reality is a text, and
that there is no way to distinguish between reality and the way we talk about it.
November 1992] PUBLIC/PRIVATE DISTINCTION 5

realms of life. Here, a distinctionis drawn between the political realm (in-
volving decisionswhich concernthe welfareof all) and the realmsof family
and market (involvingdecisions to promote privateinterests). The distinc-
tion may then be used in variousways. It may be used descriptively,such as
to explain that in the United States private interestsare valued more than
political ones. The distinction may also facilitate evaluations,such as the
assessmentof the relativecosts and benefitsof the tendencyof individualsto
"mind their own business."9
Another version of the public/privatedistinction arises in popular dis-
cussions of "privatization"related to political economy. Here, discussion
centers on problemsof managingand financingbusinessenterprisesand the
distributionof products. Questionsalso ariseconcerninghow society should
treat "public goods" and whether the private sector can provide such
goods. 10
We can examinea differentform of the public/privatedistinctionin the
context of the debate regardingpublic and privatemoralitiesand the limits
of enforcing morality.1 This discussion also addressesthe "dirty hands"
problems, questioningwhether people should have differentmoral obliga-
tions when they are acting within their publicroles as opposedto acting as a
private individual.12
To return to the legal context, a distinctionbetween private and public
has been invokedto explainthe validity of legal systems. For example,one
of H.L.A. Hart's widely endorsedinsights is that the normativenessof legal
systems is based, at least in part, on the attitudesof individualstoward the
law, with a differencebetween private individuals and public officials.13
While privateindividualsmust usually conform,for whateverreason,in or-
der for the legal system to exist, public officials must actually accept the
standardsas binding.14

A. Senses of Public/Private
From the precedingexamples,we see that the public/privatedistinction
can be invoked in many contexts, for many purposes,and in many different
senses.15 The followinggroupsof senses in which the public/privatedistinc-
tion is invoked should serve as a useful guide to our discussion.
9. Descriptions such as these, coupled with critical evaluations, are common in communitarian
literature. See, e.g., HANNAHARENDT,THE HUMANCONDITION (1958). For descriptions with a
more balanced evaluation, see ALBERTO. HIRSCHMAN, THE PASSIONSAND THE INTERESTS:
POLITICALARGUMENTS FOR CAPITALISMBEFORE ITS TRIUMPH (1977); ALBERT O. HIRSHMANN,
SHIFTING INVOLVEMENTS: PRIVATEINTEREST ANDPUBLICACTION(1982) [hereinafterSHIFTING
INVOLVEMENTS].
10. For a comprehensivediscussion, see JOHND. DONAHUE,THEPRIVATIZATION DECISION:
PUBLICENDS, PRIVATEMEANS(1989).
11. See DEVLIN,supra note 1.
12. See, e.g., Stanley I. Benn, Private and Public Morality: Clean Living and Dirty Hands, in
PUBLICAND PRIVATEIN SOCIALLIFE,supra note 3, at 158-59.
13. See H.L.A. HART,THE CONCEPT OF LAW (1961).
14. Id.
15. For a similar discussion on the various senses of the public/private dichotomy, see S.I.
6 STANFORDLAWREVIEW [Vol. 45:1

1. Accessible/Inaccessible.
A centralsense of the public/privatedistinctionconcernsaccessibilityin
the form of being known or observed. The privateis that which is unknown
and unobserved;the public is that which is known or observed,or at least is
capableof being known or observed,because it occurs in a public place.
It is importantto note that being known and being observed are also
distinct ideas. For example,althoughobservationis one way to acquirecer-
tain information about a subject, this informationmay also be available
through other means, such as voluntary disclosure. Additionally, unlike
mere knowledge,observationmay have secondaryeffectssuch as inhibition
and distraction.16Of the many definitionsof privacy that seek to use the
terms "public"and "private"exclusivelyfor concernsof accessibility,some
focus on knowledgeand information,17while othersfocus on physicalaccess
and observability.18

2. Freedom/Interference.
Another centralsense of the public/privatedistinctioncontrastsfreedom
with interference. Here, the "private"is the "free," the sphere in which
others do not interfere. The "public"will acquire a differentmeaning de-
pendingon the sourceof the interference.For example,when we talk about
legal prohibitionsor other forms of state regulation, we shall talk of the
"political."19In other contexts, such as discussing the powers of "free"
markets or of social conventions and expectations, we shall talk of the
"social."

3. Individuals/Society(Groups).
Finally, the public/privatedistinctioncan highlight differencesbetween
individualsand varioussorts of groupsor collectives. The distinctionhere is
a matter of degree, with small, voluntarygroups existing somewherein-be-
tween-labeled "private"when comparedto larger,more anonymous"pub-
lics," but "public"when comparedto distinct individuals.
Within the category of the individual,it becomes useful to draw some
subdivisions. We can distinguishthree concepts, all of which are identified
as especially private in some contexts: that which is intimate, that which
may be relatedto an individual'sself-identityor personhood,and that which
is self-regarding,affectingonly the individual (or his close and voluntary

Benn & G.F. Gaus, The Liberal Conceptionof the Public and Private, in PUBLIC AND PRIVATE IN
SOCIAL LIFE, supra note 3, at 31.
16. See Ruth Gavison, Privacy and the Limits of Law, 89 YALE L.J. 421, 428-33 (1980).
17. For examples of information-centered definitions, see ALAN F. WESTIN, PRIVACY AND
FREEDOM 7 (1967); Charles Fried, Privacy, 77 YALE L.J. 475, 482-83 (1968).
18. Richard Parker defines privacy as control over those who can sense us. See Richard B.
Parker, A Definition of Privacy, 27 RUTGERS L. REV. 275, 280 (1974); see also Gavison, supra note
16, at 432-33.
19. But, as I shall discuss later in this article, "public" and "political" share, to some extent,
the same ambiguities. See text accompanying note 55 infra.
November 1992] PUBLIC/PRIVATEDISTINCTION 7

associates). Though these senses of the individualare distinct, they are also
interrelated. While some aspects relevantto one's identity are not intimate,
such as one's religious or political commitmentsor one's career, other as-
pects, includingsexual orientationand the choice of partnersand life styles,
are. Similarly,some self-regardingdecisionsare neitherintimatenor related
to self-identity.
We might also want to differentiatebetweenthat which pertainsonly to
individuals' lives, and that which presupposessome social and political
structures. Public officialsand public officesare a good exampleof the sec-
ond category,for they presupposea system of norms essentialfor the exist-
ence of groups.

4. Complexmeanings.
Finally, all these senses may combine to create cluster-meanings.We
find such meaning in the idea of "privatelife," signifying that part of life
which is often unknownand inaccessible,at least to the publicat large. Peo-
ple often view the "privatelife" as a realm entitled to noninterferenceand
freedom from accountabilitydue to its basic self-regardingnature, connec-
tion to the intimate,and importanceto one's self-identityand welfare. "Pri-
vate life" is often perceived to be free in fact, governed only by the free
consent of the adults whose lives are concerned. To "privatelife" belong the
"personal" aspects of one's life, especially those related to domestic
arrangements.
Another complex cluster of meanings centers on matters which are
thought to be "in the public interest." This broad classificationmay signify
mattersabout which the public is in fact interested,or mattersabout which
it should be concerned.20The normative sense of public concern may be
related to the fact that these matters have direct or indirect effects on the
publicwelfare,or that these are matterswhich the publicconstructsor regu-
lates through its norms and culture. This normativeclaim may mean that
the public should seek to know about such matters, that it should seek to
make them visible, or that it should seek to change them, perhaps even
through deliberatesocial and political processes. This discussionillustrates
how the complexsensesof "public"or "private"build on the differentsenses
of these terms noted above, as well as on their movementalong the descrip-
tive-normativespectrumdiscussedbelow.

B. Descriptiveand Normative
The descriptive-normativespectrum,along which many of these public/
privatesenses travel,has many points. At the extremedescriptiveend of the
spectrum, we find questions which pertain only to "brute facts": Is this
piece of informationin fact known? Was this incident in fact observed?
20. Confusions based on this ambiguity abound in the laws of defamation and privacy, in
which public interest is a defense. See, e.g., Note, The Right of Privacy: Normative-Descriptive
Confusion in the Defense of Newsworthiness,30 U. CHI. L. REV. 722 (1963).
8 STANFORD LAW REVIEW [Vol. 45:1

Was this conduct really governed solely by the person's wishes? At the other
extreme, we find questions which call for full-fledged normative judgements:
All things considered, should this fact be published and made accessible to
the public? Should this behavior be regulated by the law? Between these
extremes we find usages of the terms which are partly descriptive and partly
normative. Although such usages describe situations, the situations presup-
pose or depend upon normative elements. Because the connections between
descriptions and normative conclusions are often condensed into single uses
of a term, these usages have hybrid senses.
The presumptive entitlement is a good illustration of the hybrid creature.
Consider, for example, the parts of our bodies which we label "private
parts." This label suggests that most of us typically keep these parts inacces-
sible and covered, and that this is the result of social norms which require
that such parts should be inaccessible. This complex social fact, reflecting
both norms and practices conforming to the norms, provides a reason for
entitling these parts to remain private in the full normative sense: No one
should be permitted to expose them or publicize them or interfere with them
against our wishes. Thus, the same single ascription of privateness performs
many functions on the descriptive-normative spectrum, including a pre-
sumptive entitlement that this privateness should be protected.
As mentioned above, the presumptive entitlement is sometimes regarded
as conclusive, so that the same single ascription can function as a description
or as a fully-fledged normative conclusion. However, even if the reason sup-
porting the presumptive entitlement is fully normative, it may be defeated by
other reasons which are applicable to the situation. For example, there may
be a criminal practice of hiding drugs in one's private parts precisely because
of those parts' presumptive entitlement to noninterference. It may therefore
be justifiable to conduct a forced search in such places if there is reason to
think the entitlement has been abused.21 The normative conclusion that fol-
lows is that, all things considered, this conduct should not be private(free),
despite the presumptive entitlement to noninterference raised by the pri-
vacy(intimacy) of one's "private" parts. This does not change the fact that
these parts are private in the intimate sense, and that this usage is not purely
descriptive.
Another descriptive-normative complexity arises when the resolution of
a normative question requires attention to elements which may be facts in
one sense and contested states of affairs in another. Actual consent, for ex-
ample, might be a requirement for making something private(presumptively
entitled to be free from interference). In an important sense, the existence of
such actual consent is a question of fact. We may be reluctant, however, to
accept such "facts" as sufficient to create the presumption of noninterference

21. An example from the feminist context will illustrate this point: My wish to become sexu-
ally aroused by watching pornography alone in my home may be private(intimate) and thus pre-
sumptively entitled to noninterference. But, as some feminist scholars argue, such conduct may be
extremely harmful in ways that consent of the parties does not remove; this harm may therefore
defeat the presumptive entitlement. See text accompanying notes 98-104 infra.
November 1992] PUBLIC/PRIVATEDISTINCTION 9

if we believe that there is an undesirablesystemic constraintcompellingthe


adoption of particularpreferences.
A "public place" is another in-between entity. Often, "public place"
evokes conventional,social or legal norms which make the place accessible
to all. In other words, we contrastthe notion of "privateproperty,"with its
normativeexclusionarystructure,with "publicplaces." Labelinga place (or
a thing) as "public"is a description,from which the normativeconclusion
that it should be made accessiblefollows.
Debate about an ascription based on social norms may include chal-
lenges to these norms. In additionto questioningthe overallnormativecon-
clusion, we may also argue about whether something that is considered
private(presumptivelyentitled to noninterference)should be seen that way.
This fact lends additional complexity to argumentativemoves that invoke
the distinctionand senses of privateand public.
This issue should be distinguished,however, from a differentsource of
complexitydiscussedabove: the labelingof things as "private"or "public"
based on the existenceof some normativestructures. Consequently,the ade-
quacy of the labeling may change with changes in these normativestruc-
tures. For example, what is considered private(intimate)has changed
considerablyover the most recent decades of Western civilization. These
changesaffectthe adequacyof labelingsomethingas "intimate,"but not the
structureof the way in which this adequacyis determined.

C. Distinctnessand Interrelatedness
It should be obvious that the various senses of public and private are
distinct. Someonecan watch us without interferingwith us (a peepingTom,
for example), thus limiting our privacy(inaccessibility)but not our pri-
vacy(freedom).And privacy(inaccessibility)may actually enhance our pri-
vacy(freedom)by permittingus, unobservedby potentialenforcers,to act in
ways which may violate social norms.22
Use of the same term, such as privacy, in differentcontexts often hides
the significanceof the normative-descriptivedimensions and is likely to
cause confusion. We may want our intimate activitiesto be inaccessibleto
others;calling them "private"invites others to respectthese wishes. None-
theless, others do not always respect such wishes, and the activities may
become accessible after all. Similarly,we may want our private(intimate)
activities to remain private(free-from-interference).We emphasize this
claim by stressingthe activities'privatenature. Nonetheless,this desiremay
not be honored, and it may be consideredlegitimatefor the law to prohibit
such conduct.23
22. For ways in which accessibility and freedom may be interrelated, see ROBERTK.
MERTON,SOCIALTHEORYAND SOCIALSTRUCTURE (1949); S.I. Benn, Privacy, Freedom and Re-
spectfor Persons, in 13 PRIVACY1 (J. Roland Pennock & John W. Chapman eds., 1971); Gavison,
supra note 16, at 446-47.
23. This is one explanation of Bowers v. Hardwick, 478 U.S. 186 (1986) (rejecting privacy
challenge to Georgia's law prohibiting sodomy).
10 STANFORDLAWREVIEW [Vol. 45:1

The cluster meanings of public/private show how these distinct senses


can be interrelated.We saw that certainfeaturesof situations,such as their
intimacy, centrality to self-identity, or self-regardingnesscan create pre-
sumptiveentitlementsto inaccessibilityand noninterference.It may well be,
for example, that a person cannot attain full self-identitywithout having
some intimacy,and that intimacy,in turn, may requiresome inaccessibility.
On the other hand, the attainmentof full personhoodmay requirepublic
participation,public affirmationof some commitmentsor relationships,or
some forms of accountability. On the societal level, perhapsharms cannot
be socially or politically redressableunless they are perceivedto be impor-
tant enough to be subjectto public scrutiny.
Against this background,the task facing critics of the public/privatedis-
tinction looks formidable. The alleged differencesbetween public and pri-
vate are so numerous,so fundamental,and so pervasivethat it is hard to
imaginea challengerdenyingtheir existencewith the simpleclaim that there
is no difference. However, invocation of the rich vocabulary can justify
many arguments challenging the distinction. This richness may support
powerfulinternalchallengesto the particularways in which the public/pri-
vate lines have been drawn and conclusionsabout them have been reached,
and the externalargumentthat, on balance, the usage is undesirable.

III. FEMINISTCHALLENGES

On the surface, many feminist challenges to the public/privatedistinc-


tion appear to be external, denying that any differenceexists. The chal-
lenges, however,actuallydocumentthe ways in which the real and pervasive
differencesbetween private and public affect the welfare of women in our
society. As a result, many feminists advocate changing existing social and
political structuresin order to eliminatethe differencebetween privateand
public in some contexts and to downplay its importancein others. Above
all, such feministsurge that the distinctionshould not be invokedas a justifi-
cation for differenttreatmentin either legal or social realms. In this way,
feminist argumentscan be internalchallenges,invokingthe distinctionand
using it as a central tool of descriptionand evaluation.
Refutingthe desirabilityof the differenceand its implicationslends sup-
port to the denial of differencebut alters somewhatthe natureof the claim:
The challenge serves to facilitate sympatheticconsiderationof differentso-
cial arrangements,ratherthan to deny existing (or even useful) differences.
These provocativedenials of differenceshould thereforebe interpreted,at
least in part, as invitationsto look anew at our world, to see how much of it
is constructed,unjustified,and based on prejudicesand myths. These claims
should be characterizedas externalclaims only if they are made not as rally-
ing cries, but rather as serious invitations to deny the differenceand de-
legitimatethe vocabularythat makes us captives of this world of prejudice
and injustice.
The centralityof the public/privatedistinctionin feministthought is un-
November 1992] PUBLIC/PRIVATEDISTINCTION 11

derscoredby the numberof challengesto existing conditionsthat have been


groundedin these terms. The discussion of these challengeswill therefore
illustrate both alternativeways of arguing about the effects of differences
between private and public and the overall effect of using the terminology.

A. ThereIs No Difference
In this Part, I will not discuss the contention that identificationof the
differencereferredto by the distinctionis impossibledue to the meaningless-
ness of the terms used. Nor will I discuss those versionsof pragmatismor
contextualism that suggest words have no meaning outside of their con-
texts.24 Rather, I will deal only with criticismswhich deny the existenceor
importanceof a differencebetween privateand public.
1. Indeterminacy.
The first form of this argumentcriticizesthe dichotomyfor being so in-
determinatethat nothing follows from identifyinganythingas either "pub-
lic" or "private." As a result, the invocation of these terms becomes a
rationalizationfor decisionsratherthan an independentlyvalidjustification.
Legal scholarshave used such an argumentin the realmof labor law,25 and
ClareDalton has challengedthe distinctionin a similarway from a feminist
perspective.26
Here we must distinguishtwo arguments. The first is that becausethere
is no rationalway to identifywhat is privateand what is public,such identi-
ficationsmust be arbitraryand conclusory. The second is that, while it is
possibleto identifyand to agreeupon what is privateand what is public,it is
24. Such extreme positions are self-defeating. By questioning the very possibility of using lan-
guage to convey messages or meanings, these critics undermine their own attempts at communica-
tion. We should distinguish these extreme positions from others that are compatible with the
presuppositionsthat I have adopted in this article: that meaning is related to usage; that pragmatics
and semantics coexist; and that languages may (or must) derive their meaning from human experi-
ence. For a position stressing the relativity of language, see RICHARDRORTY,CONTINGENCY,
IRONY, AND SOLIDARITY (1989). For an in-depth critique of related positions, see Michael S.
Moore, The InterpretiveTurn in Modern Theory:A Turnfor The Worse?,41 STAN.L. REV. 871,
892-905 (1989).
25. Karl Klare provides a detailed account of this claim as it pertains to labor law. He con-
cludes that:
[I]t is seriously mistaken to imagine that legal discourse or liberal political theory contains
a core conception of the public/private distinction capable of being filled with determinate
content or applied in a determinate manner to concrete cases. There is no "public/private
distinction." What does exist is a series of ways of thinking about public and private that
are constantly undergoing revision, reformulation, and refinement.... The public/private
distinction poses as an analytical tool in labor law, but it functions more as a form of
political rhetoric used to justify particular results ....
. . [T]he use of such rhetoric obscures rather than illuminates, and . . . the social
function of the public/private distinction is to repress aspirations for alternative political
arrangementsby predisposing us to regard comprehensive alternatives to the established
order as absurd.
Karl Klare, The Public-PrivateDistinction in Labor Law, 130 U. PA. L. REV. 1358, 1361 (1982).
26. Clare Dalton, An Essay in the Deconstructionof Contract Theory,94 YALEL.J. 997, 1038
(1985).
12 STANFORDLAWREVIEW [Vol. 45:1

not always clear what follows (or should follow) from the identification.27
Accordingto both arguments,the identificationof somethingas "private"or
"public"may be conclusory,a mere invocationto justify a conclusionactu-
ally reachedon other grounds.
Despite their similarity,these challengesare different. Only the former
supportsthe general indeterminacychallenge describedpreviously. As for
the latter argument,the fact that the same situation(or value) may require
conflictingdecisionsis a well-knowntenet in moral reasoning. This conflict
in itself does not renderthe concept useless to clear thinking. For example,
a possible rationale for limiting hate speech is that such speech silences
others. This argumentjustifies limiting the free speech of some in order to
expand others' freedomto speak. Similarly,to protect democracy,it is ar-
guably necessary to outlaw political parties that advocate the abolition of
democracy. It could be argued,however,that such action is antitheticalto
the ideal of democracyitself and is thereforeself-defeating. Whateverthe
validity of these arguments,it is clear that they involve issues in which the
same value can lead to differentconclusions. Yet, I am not aware of any
claims that either "democracy"or "freespeech"are either necessarilyinde-
terminateor conclusory.
Thus, it may well be that the identificationof something as "private"
supportsboth a claim of noninterference(for example,it is best to let fami-
lies try to work out their differenceswithout externalinterference),and in-
terference(since abuse within families is not highly visible, families should
be closely scrutinized to prevent blatant abuse, especially to those family
members who are vulnerable).28Though we must assess such conflicting
argumentsto reach a conclusion,the fact that the same feature(privateness)
may point in both directionsdoes not undermineits utility. In fact, it may
be beneficialto see that the choice we have to make involves a serious con-
flict, even in terms of the same value.
On the other hand, if it is true that there is no rationalway to distinguish
between private and public, the distinctionmay indeed be misleading,and
capable only of conclusory uses. The critical literaturecannot, however,
supportthis claim. Lookingback to the list of meaningsofferedabove,29we

27. See generally Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction,
130 U. PA. L. REV. 1349 (1982) (stating that a successful distinction must permit identification of
things between the poles and an examination of the distinct consequences that follow from such an
identification).
28. It should be noted that different senses of "privacy" are used here. The family's pri-
vacy(inaccessibility) and its privacy(limits on interference), together with its acknowledged impor-
tance as an institution, provides a justification for public attention. This attention may result either
in publicity as knowledge (about the family as an institution and about particular families) or in
actual public interference. This interference,in turn, may take the form of legal regulation or of less
institutionalized forms of influence. Ideas about the family unit may justify a presumptive entitle-
ment to privateness as noninterference. For example, elements of intimacy which bind the family
could be harmed by wholesale legal interference. In addition, since family life cannot be realistically
conducted under the constant shadow of the law, it is better to seek arrangements that will have
internal strength, independent of constant observation and enforcement by others.
29. See notes 15-20 supra and accompanying text.
November 1992] PUBLIC/PRIVATEDISTINCTION 13

see that althoughsome of them are all-or-nothingdistinctions(for example,


a publicofficialcomparedto a privateindividual)most are mattersof degree.
Labels of "privateness"and "publicness"may be clear at the extremes,but
become more difficultwhen we get to the grey areaswhere most actual cases
are. In many situations,an entity can be describedas privateor public, or
relativelyprivate or public, in a numberof differentdimensions. Both the
lack of a bright line between public and privateand the existenceof multi-
dimensionalanalysisare cited as sources of the alleged fatal indeterminacy.
But neitherfeatureis uniqueto the public/privatedistinction,and in this, as
in other contexts, the complexity of ascriptionsdoes not entail either con-
clusorinessor uselessness.30
The dangersof conclusoryuses are real and I shall returnto them later.
Practiceswhich force us to identify entities with either one label or another
encourageconclusoryuses, especiallyif the applicationis premisedon a rule
mandating a particularresult based on this identification. Such practices
tend to distort the reality that these institutions are complex mixtures of
privateand public elements. The existenceof these dangersshould not ob-
scure the fact that in many contexts we do use these terms confidently,use-
fully, and in non-conclusoryways.31
For example,voluntarilywatchingpornographicmoviesin the privacyof
one's home is differentfrom being exposed to pornographicposters on the
public highway. The first activity can be describedintelligiblyas more pri-
vate along severaldimensions: It occurs in a private(inaccessible)place and
is private(free)because it is voluntary. Moreover,both aspects of private-
ness can support a presumptiveentitlement to be private(not-interfered-
with). Yet this valid and usefulascriptionof privatenessshould not prejudge
the question of whether the two activities should be treated differentlyin

30. A famous illustration of the difficultiesof ascription is the adjective "bald": Whereas Yul
Brenner was bald by all standards, there are many cases in which the adequacy of the ascription is
questionable. Nonetheless, the word remains an effective adjective. For a discussion of the limits of
indeterminacy challenges in the context of the personhood of fetuses or the ascription of "life," see
Bernard Williams, Which Slopes Are Slippery?,in MORALDILEMMAS IN MODERNMEDICINE126
(Michael Lockwood ed., 1985).
31. Dalton makes a powerful argument that "private" and "public" are used in a conclusory
manner in contract law. Dalton documents how arguments from both "privateness"and "public-
ness" have been used to deny women's claims to property rights upon the termination of nonmarital
intimate relationships. Such decisions to not enforce agreements between cohabitants can be based
on a variety of grounds: an interpretation of the actual intent of the parties themselves (a private
matter, the enforcement of which is a matter of public policy); a policy decision that the relation-
ships involved are too intimate (cohabitation in this sense is more intimate than are business transac-
tions); or a reluctance to allow and thereby encourage alternative forms of relationships outside of
publicly supported and regulated marriage. Dalton's conclusion is that the "availabilityof this range
of intention-basedand policy-based argumentsmakes possible virtually any decision." Dalton, supra
note 26, at 1100.
Dalton is correct that many arguments are possible and that some will invoke notions of pri-
vateness and publicness. She is also correct that "privateness"may at times be a reason both for
enforcement (we want to give force to free agreements between parties) and nonenforcement (we
want to remove the possibility of enforcement from certain relationships and negotiations). This
illustrates the many senses of "privateness"as well as the fact that some values may be implemented,
at times, in different ways; it does not support the view that the use of privateness(intimacy) or
privateness(voluntaryand consensual) is conclusory.
14 STANFORDLAWREVIEW [Vol. 45:1

terms of legal regulation. The activitiesmay be similarin respectsthat tran-


scend the public/privatedifference. Such similaritiesmay include common
effectson publiccultureor on privateconduct. Thus, it is arguablethat such
conduct is not private(self-regarding).As a result, the presumptiveentitle-
ment to noninterferencemay be defeatedby the wish to preventsuch harms.
This discussionreveals how the ascriptionof privateness,with attentionto
differentsenses and moves on the normative-descriptive spectrum,therefore
aids the discussionwithout prejudicingit. Thus, the generalindeterminacy
argumentfor denying all public/privatedifferencesmust fail.
2. Nothing is reallyprivate.
Here, the attack is directedat three senses of privatenoted above: pri-
vate as self-regarding;private institutionsbased on norms of contract and
property(the more voluntaryparts of which are called "privatelaw"); and
private as free. According to this argument,false beliefs are created when
these three senses of privacy-which are, in fact, empty categories-are in-
voked. While the attack is not directedat all conceivablesenses of public or
private listed above, those targeted are the central and importantones. If
the attack is successful,the utility of the distinctionmay be outweighedby
its confusingand distortingeffects.
Nothingis self-regarding.This challengehas become familiarfrom criti-
cisms of J. S. Mill's On Liberty. A cornerstoneof Mill's argumentfor liberty
was the distinctionhe drewbetweenself- and other-regardingactivities. Ac-
cording to Mill, the formerwere outside the jurisdictionof society.32 Mill's
argumentsfor liberty were attackedby critics who contendedthat, because
individualsdo not exist as monads, independentof all others, no significant
activity can be solely self-regarding.33
Some feminists sound like Mill's critics. In response to the claim that
what happenswithin familiesis self-regarding,affectingonly membersof the
family unit, feministsanswer that the "private"arrangementswithin fami-
lies affectboth nonmembersand society at largein importantways. Citizens
of the state are socializedwithin the family, and evidenceshows that child-
rearingarrangementsaffectchildrenin profoundand complexways. Conse-
quently, the characteristicsbrought by children into their adult lives will
eventuallyaffect the general norms and expectationsof their society. Fur-
thermore,child-rearingarrangementsaffectnot only the chances of particu-
lar family membersto participatefully in the public worlds of work and
politics, but also the general pattern of participationof women in society
(includingthose women not raisingchildren).34
Similarly,some feministsarguethat activitiesthat are commonlyviewed
32. JOHNSTUARTMILL,ON LIBERTY13 (Emery E. Neff ed., 1926).
33. A related critique of liberalism is the claim made by communitarians that liberalism is
based on a misguided picture of the individual as existing prior to inclusion in a particular society.
See, e.g., CHARLESA. TAYLOR,SOURCES OFTHESELF(1989).
34. See OKIN, supra note 3, at 131-33 (relying on, among others, NANCYCHODOROW, THE
REPRODUCTION OF MOTHERING: PSYCHOANALYSIS AND THE SOCIOLOGY OF GENDER (1978)).
November 1992] PUBLIC/PRIVATE DISTINCTION 15

as paradigmaticallyself-regarding,such as an individual'sdecision to watch


pornographyalone in the privacyof her home, are in fact other-regardingin
importantways.35 According to this argument,such decisions presuppose
the availabilityand permissibilityof the activity, as well as society's tolera-
tion of the possibleconsequencesof the choice to view pornography.A soci-
ety in which such outlets not only exist, but are tolerated,is a society that
permits the creationof images portrayingwomen enjoyingabuse and pain.
It is also a society in which it is more likely that people will respond to
pornographyand abuse others.
No controversialactivitycan be purelyself-regarding.The very fact that
an activity creates a controversyindicates that it has an effect on others.
Moreover, it may be true that no significantactivity is completely self-re-
garding,becauseany conduct may have some effects,howeverremote,spec-
ulative, or diffuse,on others. Additionally,while consent,freely given, may
entitle participantsin an activityto noninterferencein some contexts,it does
not make the activity self-regarding.The real question,however,is whether
we can intelligibly distinguish among activities according to the quality,
magnitude,probability,and irreversibilityof the effectsthat they may have
on others. Hereinlies the strengthof Mill's intuition. Any individual'sdeci-
sion to violate a social norm in the privacyof her home may contributeto
the demise of that norm (and thus may not be fully self-regarding).This
conduct, however, differs from a public denial or violation of that same
norm. Such public denial, in turn, is very differentfrom conduct which
harms individualsdirectly.
This objectionto the public/privatedistinctionservesas a reminderthat
the extent to which activitiesare self- or other-regardingmay be a matterof
degree. Consequently,the objectionis of the same status as the argument
from indeterminacy:36Although most entities are neitherclearlypublic nor
clearly private, importantnormativeconclusions may still follow from the
degreeof self- or other-regarding.For instance,it may be legitimateto dub
activities which are primarilyself-regardingas "private"and to establisha
presumptionof noninterferenceon this basis.37
No social institutionis private. Critical Legal Studies scholars took this
argument about contract and property from the Realists and their men-
tors,38and it was subsequentlyappliedto the family.39This argumentseeks
to underminethe presumptionof noninterferencewith privateinstitutionsby
35. This argument is distinguishablefrom the assertion that voluntary viewing of pornography
by women is not really voluntary, so that the right to watch pornography at home protects "men's
right to inflict pornography upon women in private." MACKINNON,supra note 4, at 205. More
applicable here is MacKinnon's description of pornography as "an industry that mass produces
sexual intrusion on, access to, possession and use of women by and for men for profit." Id. at 195.
36. See text accompanying notes 25-31 supra.
37. This might be a major qualificationof Mill's argument if he believed that self-regardingness
was an all-or-nothing concept which established a conclusive reason for noninterference. In the
context of challenging the public/private distinction, however, the broader position suffices. See text
accompanying note 32 supra.
38. See KELMAN,supra note 6, at 102-13 (citing the works of Realists including Robert Hale);
see also MORRIS R. COHEN, The Basis of Contract, in LAW AND THE SOCIAL ORDER: ESSAYS IN
16 STANFORDLAWREVIEW [Vol. 45:1

showing that these institutionsare in fact public in importantrespects. In


doing so, the criticismdemonstrateshow the presumptionof noninterference
arises: We label property,for example,as privateto signify that it depends
on voluntary transactionsbetween relatively equal private adults. When
coupled with a generalrespectfor the voluntaryactivitiesof individuals,this
descriptioncreates a presumptionof noninterference.
According to the criticism, contract, property,and marriageare public
because they are definedand regulatedby the law and social norms, both
public creations. The law determinesthe initial endowmentsof property.
The law confers the "private"powers of deciding whether to make a con-
tract, to sell a piece of property,to get married,or to enter into a co-habita-
tion agreement. The State also grantsand, when necessary,enforcespowers
such as the prohibitionon nonownersto enter, use, or sell. The implication
is that the presumptionof noninterferenceis misguided: What the public
created and maintains, the public can take away. The ultimate decision
about what should be privateis, and should be, public.
While this importantinsight should be conceded and even stressed, it
neitherfollows that there is no importantsense in which "privateproperty"
is private nor that there are no good reasons for the presumptiveentitle-
ments of private arrangementsto noninterference.There is (and probably
should be) a differencebetweenpropertythat is controlled,maintained,and
managedby individualsand propertythat is held by collectivesor the state.
It is true that the decision about the propertyregime in a given society is a
public one. Though the decisionwill be public irrespectiveof the content of
the regime which is adopted,the differencebetween propertyarrangements
is significant,and some such arrangementscan intelligiblybe dubbed"pri-
vate."40 So privatepropertyis indeed "private"in an importantsense.
Moreover,the concededfact that what is privateio determinedby public
norms and laws does not invalidatethe presumptionof noninterferencewith
privatearrangements.Although the public realmmay be the final arbiterof
what remains immune from interference,public norms and laws should
grant private arrangementsthis immunity where these are transactionsbe-
tween full and informedindividuals. This follows from the belief that it is
desirableto leave individualsan areain which they can act free from govern-
mental interference.
Nothing is free. This argument,too, has general and feminist versions.
According to the general version, nothing we decide is really "free"in the
sense that it is determinedonly by our own wishes and preferences.We are
constrainedby various limits: opportunities,socialization,expectations,re-

LEGAL PHILOSOPHY69 (1933) [hereinafter LAW AND THE SOCIAL ORDER]; MORRIS R. COHEN,
Property and Sovereignty, in LAW AND THE SOCIAL ORDER, supra at 41.
39. Much literature documents the fact that the family is regulated quite heavily. See, e.g.,
CHRISTOPHERLASCH, HAVEN IN A HEARTLESSWORLD (1977); Frances Olsen, The Myth of State
Interventionin the Family, 18 U. MICH.J.L. REF. 835 (1985).
40. See, e.g., JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988) (classifying
forms of property, including private property, and justifying the institution of private property).
November 1992] PUBLIC/PRIVATEDISTINCTION 17

sourcesand perceptions. Many of these constraintsare person-madeand not


inevitable.41Similarly, nothing is voluntary and equal. The worker who
must earn a living and can sell only his laboris not free to choose unemploy-
ment, even if the only availablework is humiliatingand exploitative. Con-
sent becomesanythingbut the productof bargainingbetweenfree and equal
adults.42
The feminist version of the argument ranges over a number of areas.
When women "choose"to marry, when women "want"sex, when women
"choose"to stay home and spend time with their childrenratherthan pur-
sue their careersin "workaholic"ways, women are not choosing freely, but
ratherare selectingfrom choices mandatedby social constraintsand norms.
The fact that many women feel happy and fulfilledin these "choices"is not
evidence that these "choices"are free. Rather, the feeling of fulfillmentis
the insult added to the injury of the initial programming. Society has in-
duced these feelings in women so that women will not rebel against their
exploitationand oppression. Basicallydependentupon men as breadwinners
and sourcesof powerand status,women are not free to "exit"and are there-
fore unable to negotiatethe conditionsof their relationshipsfrom positions
of freedomand equality.43
It is an importantinsight that many decisionsnot subjectto state regula-
tion or physicalcoercionare not authenticexercisesof individualautonomy
and choice; much of what determinesour conduct stems from externalcon-
straintswith diverseand pervasivesources. It must furtherbe concededthat
these constraintsmay have importantpolitical implications,often obscured
by descriptionsof these activities as "free"or as "equal."
Nonetheless, the truth of these insights should not be taken to require
either of the following conclusions: first, that all attemptsto quantifyfree-
dom, or to distinguishbetweenareasof freedomand areasof its absence,are
necessarilyfalse and misleading;and second, that freedomfrom legal regula-
tion is not an importantand useful distinction.
It may be an interestingempirical claim that women are systemically
subordinateto men in their availableoptions and expectations. This situa-
tion may well call for redress. Yet, though it may be interestingto claim
that women are not free,44this is a far cry from saying that nothing is ever

41. See Robert C. Post, The Social Foundations of Privacy:Community and Self in the Com-
mon La,; 77 CAL. L. REV. 957 (1989).
42. The first challenge-that nothing is really free-is much more sweeping than the second
challenge-that nothing is voluntary. Under the first challenge, most aspects of our lives are not
free. The second challenge is more local and presupposes that in some contexts people may act
freely and voluntarily. For a denial of the voluntariness and justice of many work agreements under
capitalism, see Allen Buchanan, Exploitation, Alienation, and Injustice, 9 CAN. J. PHIL. 121, 122-24
(1979) (discussing Marx's view that exploitation is prevalent in the labor process).
43. For the illusory nature of the freedom of women to choose marriageand sex, see MACKIN-
NON, supra note 4, at 160-70. For the actual constraints on the ability of women to exit from and
negotiate in marriage, see OKIN,supra note 3, at 137-38.
44. Although some feminists make this broad claim, I doubt its truth. For a more detailed
documentation, see note 54 infra and accompanying text. It seems that the feminists who make such
a claim do so rhetorically, to draw attention to an important (partial) truth and do not intend to
18 STANFORDLAWREVIEW [Vol. 45:1

free. In fact, the complaintthat women are not free presupposesthat men
may be free and that women should strivefor this level of freedom. Implicit
in the complaint, therefore,is an ideal which assumes that some form of
political and social liberty is possible and desirable. For these reasons,the
feminist complaintdoes not allege that nothing is free. Rather, the erroris
either that somethingis deemedfree when it is not (women'sconsent to sex
and marriageis seen as free when it is induced by constraintsand brain-
washing), or that some men oppress women, denying women's freedom in
order to perpetuatetheir own.
If nothing is free anyway, the differencebetween legal regulationand
other ways of guidingbehaviordisappears.A qualificationin this statement
is thereforeneeded to remind us of the distinctnessof using the law, or the
power of the State, to regulate aspects of human conduct. It is hardly a
trivial move to advocateor justify using the law to prohibitconduct which
does not cause physical or economic harm to others. One importantcon-
temporarypoliticaldebaterevolvesaroundsuch questions,as appliedto con-
duct such as homosexuality,taking soft drugs, voluntary sadomasochistic
practices,and the voluntaryor solitarywatchingof pornography.Often the
argumentagainst legal regulationin these fields has been made in the name
of freedom. Even if the argumentcould be basedon other grounds,however,
it is a mistaketo assumethat legal regulationis indistinguishablefrom social
pressuresor economic needs.45
3. Thepersonalis political.
This claim in slogan form, so typical of the women's movementand of
feminism,appearsas a radical denial of the differencebetween two central
make a serious empirical claim. Even on the rhetorical level, there is a tension within feminist
thought concerning this claim. For example, abortion is often defended as providing a woman with
the power to make a choice to control her own life. But, if women's choices are never free, this
argument fails. Debates about surrogacy also illustrate this tension. Some feminists regard surro-
gacy as the ultimate exploitation of women-it commodifies them by treating them as "birth ma-
chines." Other feminists recommend leaving the decision in the hands of individuals, emphasizing
the independence of women to make choices about personal resources such as their bodies. See
CARMELSHALEV,BIRTHPOWER:THE CASEFORSURROGACY (1989).
45. This is well illustrated by a debate within feminism. While "liberal"feminists object to the
regulation of pornography,among other things, because of a distrust of the state qua state, "radical"
feminists distrust the state qua male. See JAGGAR,supra note 3, at 180, 283. Liberal feminists
typically argue that women should decide for themselves whether or not to indulge in, for example,
voluntary sadomasochistic practices, but will urge women that such practices are undesirable. Id. at
274. Radical feminists often welcome strong social and group pressurewhich mark such practices as
inconsistent with "true feminism."
Therefore, while both liberals and radicals agree that privacy or freedom properlyexcludes legal
interference, only the liberal feminists also want to exclude social pressures. For the liberals, free-
dom of choice or autonomy justifies this exclusion. On the other hand, some radical feminists see
lesbian sadomasochism and pornography as private cases of the general wrongs of pornography,
deserving of unambiguous social condemnation and possible legal prohibition. Id. at 274-75.
MacKinnon, whose analysis of pornography suggests the latter view, made a strategic decision
to advocate legislation that did not prohibit "private use." Compare the general analysis with the
explanation of the proposed ordinance in CATHARINE A. MACKINNON, Francis Biddle's Sister:Por-
nography, Civil Rights, and Speech, in FEMINISMUNMODIFIED: DISCOURSES ON LIFEAND LAW
163, 171-77 (1987) [hereinafterFEMINISM UNMODIFIED].
November 1992] PUBLIC/PRIVATE DISTINCTION 19

senses of private and public.46 In some contexts, it is related to the claim


that nothing is self-regardingor free in the sense of autonomous, uncon-
stricted, or unaffectedby cultures and social norms. Many of one's most
"personal"decisions, such as whether to marry, how to mourn, and what
kind of a career to choose, are obviously affected both by political con-
straintsand by the availabilityof legitimateoptions. For example,in a time
of social or politicalcrisis,the decisionnot to engagein politicalactivitymay
be much less permissiblethan the same decisionduringa time of prosperous
and "normal"politics. The fact that both personaland social factors affect
individuals'decisionmakingis in no way unique to feminist perspectivesor
insights. More importantly,this fact does not seek to underminethe impor-
tance of identifyingsuch decisions as personal. Usually, such identification
relatesto a combinationof factors,such as the importanceof the decisionto
the individual'slife or identity,the relativeabsenceof identifiableand direct
harm to others or the public at large, the power the individualhas to make
the decision,and the absenceof a social expectationof accountabilityfor the
choice.
But there is at least one context, central to the feminist challenge, in
which the slogan does seek to deny these differencesand to negatethe impli-
cations which usuallyfollow from calling something"personal."One of the
functions of dubbingsomething "personal"is to define that activity, deci-
sion, or complaint outside of the social, political, or public arena, and to
connect it with the particularcircumstancesand responsibilitiesof the indi-
vidual or individuals concerned. This definition, in turn, identifies the
properway to addressthe complaintor the problem: The individualsuffer-
ing from personaldifficultiesmay need aid or therapy. Although the general
availabilityof such help may be a social concern,the particularproblemis of
no public interest or concern.
Feminists,especiallyradicalones, attack the classificationof things into
personal and political, arguing that many personal problems are deeply
political.47 For these feminists,the slogan does not act as a mere reminder
of interdependencebetweenthe publicand privaterealms. Rather,it is used
to challengethe existenceof alleged differences:The "personal"should not

46. In fact, some feminists treat the statements "the private/public distinction must be chal-
lenged" and "the personal is the political" almost interchangeably. As Okin has stated, "'The per-
sonal is political' is the central message of feminist critiques of the public/domestic dichotomy."
OKIN,supra note 3, at 124;see also CATHARINE A. MACKINNON, Privacyv. Equality:Beyond Roe v.
Wade, in FEMINISMUNMODIFIED, supra note 45, at 93, 100 ("This is why feminism has had to
explode the private. This is why feminism has seen the personal as the political. The private is the
public for those for whom the personal is the political.").
It is interesting to note that one sentence of this passage reads differently in MacKinnon's 1989
book: "The private is public for those for whom the personal is political." MACKINNON, supra note
4, at 191. Both formulations abound in feminist literature. Whereas the first statement presupposes
the distinctness of the realms and claims that everything that belongs to the personal is also political,
the second formulation denies altogether the distinctness of the realms. For a discussion of the
difference, see Frank Michelman, PrivutePersonal but Not Split: Radin VersusRorty, 63 S. CAL. L.
REV. 1783 (1990). For my purposes, either formulation will suffice.
47. See Carol Hanisch, The Personal Is Political, in THE RADICALTHERAPIST152 (Jerome
Agel ed., 1971).
20 STANFORDLAWREVIEW [Vol. 45:1

be allowed to stop conversations,critique,or accountability;the "personal"


should not be seen as an impropertheme for concern and possible public
interference.It is againstthe backgroundof this interpretationof "personal"
that the slogan identifyingthe personalwith the political should be under-
stood. When women are harassedin the workplace,it is not just the predica-
ment of the individual women who are unfortunateenough to work for
exceptionalmale employers. When women are batteredat home, it is not
because each particularvictim has triggered an unfortunate"individual"
tragedy. When women feel constrainedand bored in their expensivesubur-
ban homes, with nothing to do but wait for their husbandsand childrenso
that they may cater to their needs, it is not because these women fail, as
individuals,to adjust to their natural feminine roles. Social structuresare
involved,social structureswhich are not simply "natural."They are person-
made, and they benefitmales.48
Furthermore,the argumentgoes, dubbingcertainactivitiesor choices as
"personal"is in itself part of the mechanismused to perpetuatethe anoma-
lous and unjust situation, by obscuringthe injustice of the structure,and
instead highlightingindividualadjustmentswithin the status quo. For this
reason,feministconsciousness-raisinggroups,meetingto discuss the lives of
their individualmembers,are not properlyunderstoodas an indulgencein
the personal. Such groupsare a way to give the experiencesof women more
visibility and to make women understandthat their "individual"problems
are actually the reflectionsof undesirablesocial structures.49
One part of this argumentmust be valid: To effectivelyrecognizethat
the structuresare partly responsiblefor these "personal"problems,society
must firstidentifythe symptomsas part of a social problem. We should then
seek to make the underlyingproblemvisible (insteadof encouragingthe se-
crecy and shame which are too often the accepted approachesto personal
inadequacies)and to mobilizeindividualsto regardthe situationas political,
enlisting the forces of political and social reformfor change.
More questionableis the attemptto concludefrom "the personalis polit-
ical" that nothing should be immune from public scrutiny, discussion,and
accountability. This is a substantivequestion of political morality, which
should be discussedon its merits. It cannotbe decidedsimplyby identifying
the effectivepreconditionsof puttingsomethingon the publicagendaand by
evaluatingit against its social and political background.50
I shall return to the issue of whether, since many so-called "personal"

48. This is an important part of the reason why Betty Friedan's best-selling book The Femi-
nine Mystique was so influential: It argued that the factors affecting women's lives were systemic
rather than personal.
49. See Hanisch, supra note 47, at 152 (defending the practices of some consciousness-raising
groups against the challenges of more radical and activist feminists).
50. A topical example is the heated debate among feminists as to whether the names of rape
victims should, against their wishes, be made public. A recent installment of the debate came in the
wake of the disclosure of the name of the woman claiming that William Kennedy Smith raped her in
1991. See, e.g., Andrea Dworkin, The Third Rape, L.A. TIMES, Apr. 28, 1991, at M1 (objecting to
disclosure); Susan Estrich, The Real Palm Beach Story, N.Y. TIMES,Apr. 18, 1991, at A25; Respect
November 1992] PUBLIC/PRIVATE DISTINCTION 21

issues are actually caused by social and political facts, the fact that the
designationof "private"hides this fact supportsa conclusion that public/
private language should be delegitimized. Nothing in this claim, however,
supportsthe conclusionthat the realmsof personaland political are identi-
cal or that the use of the terminologyis never useful. This claim does not
affect the basic intuition that our particularstruggles with our activities,
loves, and work are what make our lives our own. Of coursewe are affected
and constrainedby availableoptions and social norms, and our own strug-
gles may well help to reinforcepoliticaland social processes. But most of us
feel that there are aspects of our lives which are "private"and "personal,"
and thus should not be accessibleto others without our consent;they should
not be matters dealt with by the public, be it media or politicians. This
intuition presupposessome distinctionbetween privateand public, between
personal and political. It is not affectedby the validity of the insight that
"privatization"may be, at times, a cause of invisibilityand paralysis.

B. Too Much Difference


Even feministswho advocateversionsof the "no difference"claims agree
that, in our social reality, pervasive differencesexist between private and
public, and that these differences,real and perceived,greatlyaffectthe situa-
tion of women. The paradigmaticprivatesphere contains the realm of do-
mestic and family life, whereasthe paradigmaticpublic sphereencompasses
the realm of politics-decisionmaking concerningthe welfareof society as a
unit. The economic realm, which includes productionand marketing,lives
in-between. While for the Greeksand for most liberalpoliticaltheorists,the
economic is an elementof the private,for Marxists,CLS scholars,and radi-
cal and socialist feminists,it is an importantpart of the public.
The claim that differencesexist between the public and private is re-
flected in the history of Westernsociety. Beforethe industrialrevolution,a
distinctionexisted betweenpolitics and war, on the one hand, and the com-
plex of family and householdwork on the other. Though women and slaves
were excluded from the former,they dominatedthe latter realm, which ex-
panded well beyond family matters. During this period, most of the prod-
ucts necessary for survival, both for consumption and for barter or
commerce, were producedwithin the household, and women and children
had primary responsibilitiesfor these tasks. As a consequence of this
mingling of work and family life, more decisions were made in the house-
hold, and the balance of power and responsibilitywithin the family was
more egalitarian. In public/privateterms, we can describethis either as a
more extendedprivate,or as a period of mingling of privateand public.
After the industrialrevolution,the social differencebetweenthe domestic

Rape Victims'Privacy, WALL ST. J., Apr. 24, 1991, at A14 (recounting a rape victim's view of the
debate).
We should not automatically choose greater disclosure, even if we accept that more disclosure
will more effectively fight the misguided shame and stigma presently connected with being a rape
victim and the falsehood that rape is an individual tragedy rather than part of a social pattern.
22 STANFORDLAWREVIEW [Vol. 45:1

and the market appearedand intensified. Though the distinctionbetween


the domestic realm and that of politics remained, a further distinction
emerged: that betweenthe world of work, removedfrom the household,and
the world of the family,in which childrenwere raisedand the physicalneeds
of memberswere met.
These post-industrializationdistinctions are still in effect today, and,
against the background of this relatively noncontroversialdescription,51
feministsraiseseveralclaims. In differentways, each of these claimsinvokes
the public/privatedistinction.

1. Relegationto private,exclusionfrom public.


The firstfeministclaim is that the privatizationof women has resultedin
their marginalization.In modem, post-industrialsocieties, women have re-
mained relegatedto the private, while this realm has become increasingly
impoverishedand limited. The private now excludes not only politics, but
also bread-winningwork.52
Exclusion of women from the public occurred in many ways. First,
many legal systems excluded women politically by denying them the vote
and even withholdinglegal status independentof their fathersor husbands.
In additionto these exclusions,women were grantedonly limited economic
and property-holdingrights, and, in many countries, women were banned
from many professions,including medicine and law. Even today, without
many of the formallegal hindrancesto equal participationin the politicalor
professional worlds, women are representedunequally. Finally, in most
families,women still take primaryresponsibilityfor raisingchildrenand for
providing unpaid services in the home while men are expected to earn a
living outside the home.
Feministsargue that this relegationof women to the "private"is unjust
because it burdenswomen in many ways.53 It denies them positive liberty,
visibility,rewardinglives, and independence,withoutacknowledgingthe dis-
tributionas unjust and deservingof discussionand redress. The "private"
becomes simultaneouslyinvisibleand purely "self-regarding,"and therefore
of no public interest.

2. The myth of difference.


Accordingto feminists,the problemis more than the creationof the pub-
lic and private realms and the relegationof women to the latter. Another
problemlies in the way the realmshave been differentiated.Feministsargue
51. ZILLAH R. EISENSTEIN, THE RADICAL FUTURE OF LIBERAL FEMINISM 14-30 (1981).
52. One of the interesting features of feminist scholarship is that it consciously fights its own
class and color biases. This description seems true primarily of middle class women, the subjects of
the modem analysis given by Betty Friedan. Feminists recognize, however, that some women have
always worked to earn a living.
53. See, e.g., SHULAMITH FIRESTONE, THE DIALECTIC OF SEX: THE CASEFORFEMINIST
REVOLUTION (1970); OKIN, supra note 3, at 128-33 (citing instances of sexual divisions of labor
within the home as well as in the outside world).
November 1992] PUBLIC/PRIVATEDISTINCTION 23

that the differencesare either nonexistent or exaggerated,resulting in the


continued oppressionof women.
One frequentlycriticizedcharacterizationviews the market,like the hunt
or war, as cruel and harsh, governedby self-interestand power. The family,
on the other hand, is the realmof affection,love, harmony,and cooperation.
Under this perspective,men, becausethey are stronger,volunteerto face the
harsh "outside"world, and women, grateful to have been spared, provide
the warmthand supportthat enablesthe men to returnto the harshworld of
money-making.
Another characterizationrelates to the degree of freedom from regula-
tion within the family, as comparedto the "outside." Because the family
realm is one of love and harmony of interests, there is no need for legal
interference. Accordingto this perspective,"natural"familialinstincts and
common interestswill ensurethe welfareof everyone. Noninterferencecan
also be explainedand justifiedbecauseintra-familyarrangementshave been
reachedby free and equal adults. Therefore,respect for the autonomyand
integrity of familial relationshipsrequiressuspensionof interference.
Feministschallengeall of these characterizationsof the realms. Though
the worldsof work and politics may be competitiveand harsh,they are often
rewardingand challenging,providingmeaningand importancein one's life.
Furthermore,though much behaviorin the worlds of work and politics may
be motivatedby self-interest,one can also find nobility, charity, and friend-
ship in these worlds.Participationin the publicrealmshould not be seen as a
sacrifice,and the exclusion from it, even if voluntary,should not be seen as
an advantage.
Similarly,accordingto feminists,the family is far from being a place of
simple affectionand harmony. Despite the love and commitmentwhich are
centralto family associations,the interestsof family membersoften conflict.
These conflictsare often resolvedby power,ratherthan by a benevolentcon-
sideration of everyone's interests. Furthermore,though the work in the
home may not be as competitiveas that in the market,it is often routineand
tedious, not to mention lonely and isolating. Because it is usually not paid
for, the work generatesno financialbenefitto foster independenceand con-
trol. To top it all, work within the home has little visibility.54Descriptively,
for feminists, the "private"is much less attractive,and the "public"much
less threatening,than the common story allows. With this in mind, a bar-
gained-fordivision of labor that excludes women from the public becomes
much less acceptable.

54. Feminists have done important work documenting women's lives. They often detail the
lives of exceptional women who successfully break out of their traditional roles and achieve lives of
distinction. But they have also documented private lives, attempting to show their unappreciated
and undervalued richness. For an example detailing the lives of "regular" women, see FRAN
LEEPERBUSS,DIGNITY:LOWERINCOME WOMENTELLOFTHEIRLIVESANDSTRUGGLES (1985).
For a sensitive discussion of the impact and importance of such documentation, see Mari J. Mat-
suda, PragmatismModified and the False ConsciousnessProblem, 63 S. CAL. L. REV. 1763, 1766-68
(1990).
24 STANFORDLAWREVIEW [Vol. 45:1

As we have seen, feministsalso chargethat familiesare not in fact "free"


in any importantsense of this term. First, we consider"free"in the sense of
unregulatedby legal or social norms. While it is true that there is a reluc-
tance in the law to interferewith the ongoing managementof family life and
to superviseor enforce"intimate"arrangements,there is much regulationof
the institutionof marriageand discouragementof alternativefamily group-
ings. Competenceto marryand defaultarrangementsare often regulatedby
law, while norms of appropriatenessare enforced through social pressures
and counseling.
Second, we consider "free"in the sense of emergingfrom bargainsand
agreementsbetween equal and free adults. Children, who are clearly not
equal and free adults, sufferthe consequencesof familialarrangementsthat
cannot be described as "voluntary"insofar as they are concerned. But,
claim feminists,women too are neither equal nor free. Because of their de-
pendence on men, which is partly economic and partly psychological,wo-
men are afraidto exercise the "exit" option, or to behave in ways that will
increase the chances that their husbandswill "exit." Family "bargaining"
thereforeproceedsunder the shadow of this dependence. Furthermore,the
family is not an inviolate area for women. In fact, we know that the
problemsof domestic violence and abuse are all too real in modernsociety.
Finally, feministschallengethe conclusionthat the familyshould be free
from interferenceby the state. They arguethat this conclusionrests on false
premisesabout the nature of family life. Once these false assumptionsare
exposed,it becomesclear that familiesshould be scrutinized,and that inter-
ference may be justified when necessaryto protect the vulnerable: women
and children. According to this argument,the "privacy"of the family is
often invoked to mask the exploitation and batteringof family members.
Such exploitationand violence should be mattersof public concern,and the
fact that they occur within the family should not be used to provide them
with immunity.

3. The myth of autonomy.


In addition to differentiatingbetween public and private,a common in-
terpretationmakes them separateand autonomous: What happens in pri-
vate concernsonly the family or its individualmembersand does not affect
society at large. The belief that private acts are relativelyinconsequential
helps to justify noninterferenceas well as to perpetuatelow visibilityand an
absenceof public concern. The events of privatelife are, in the terms of the
familiar slogan previouslydiscussed, merely personal. Feminists emphati-
cally challengethe purportedindependenceof the two realms,arguingwith
great force that privatearrangementsprofoundlyaffectthe publicrealmand
its social structures.
In Part III.A.2 above, I rejected the broader feminist argument that
nothing could, in principle,be self-regarding.But there is great merit in the
narrowerclaim concerningthe public importanceof the consequencesof ar-
November 1992] PUBLIC/PRIVATEDISTINCTION 25

rangementsthat are superficiallyself-regardingand consideredprivate. One


significantfunction of this feminist claim is to give these consequencesvisi-
bility and, thus, to make them a matterof public knowledge,attention,and
concern.
For example, familial relationships,in large part, shape the individuals
who will become citizens and workers. The basic ingredientsof public life
are traceableto the ways in which families raise children,includingthe in-
culcationof gender-basedexpectationsand perceptions. In addition,the rel-
ative disadvantagesof women in the worlds of politics and work stem from
their disproportionateburdensin the private realm, especiallywith respect
to child-rearing. The interdependenceof public and private indicates that
changesin publiclimitationson women will have little effectunless they are
accompaniedby changes in privaterelationshipsand by correlativechanges
in the interactionbetween public and privaterealms.
Interdependenceprovidesanotherargumentagainstthe presumptiveen-
titlementof noninterferencein the family realm. Becauseprivatefamily ar-
rangements may well be among the most consequential factors in
individuals' development and may largely determine their options in the
public world, publicattemptsto optimizethese arrangementsmay be desira-
ble. The need for public influencebecomes evident when we consider the
inequalityof bargainingpowers and the prevalenceof many prejudicesand
stereotypes. As usual, these reasons may be balanced against other con-
straints,including the wish to protect, to some extent, the privacyof fami-
lies, and the limited effectivenessof public regulationin this area. But these
are very differentfrom "jurisdictional"objectionsto interferencewith pri-
vate lives.

4. Assessingthe private.
The differencebetweenprivateand publicis not only a matterof relegat-
ing parts of life to differentrealmsand claimingthat these realmsare auton-
omous. The two realms, typically, are also valued and assesseddifferently.
Three approachesto this valuationprocesscompetein the generalliterature.
The firstdevaluesthe privateas unimportantand unchallenging,lackingthe
nobility and courage demandedby involvementin the public. The second
makes the private not only the "haven in a heartless world," but also the
ultimate source of meaningand satisfactionin life. A third approachviews
both as candidatesfor satisfactionand reward,with individualsneedingac-
cess to both realms, although possibly in differentmixes.55
Most feministsbelieve that the world as we know it systematicallyleans

55. I use private and public loosely here, with "private"and "personal"focused on family and
intimate relations as well as social and recreational activities, which are more central to feminist
concerns. There are different assessments of private and public when the latter is depicted more
narrowly to include only political and public involvements. For instance, compare the Greek ideal-
ization of the nobility of politics, reflectedin contemporaryliteraturethat mourns the shift to "priva-
tization," see, e.g., ARENDT,supra note 9, with the more cautious approach of liberals such as
Benjamin Constant. See, e.g., HIRSHMAN, SHIFINGINVOLVEMENTS, supra note 9.
26 STANFORDLAWREVIEW [Vol. 45:1

to the first approach,devaluing the private as a woman's realm based in


nature as distinguishedfrom culture. Anthropologistspoint out that this
tendencyis cross-cultural;exclusivelymale tasks, whateverthey may be in a
given society, are consideredmore importantthan tasks performedby fe-
males.56 Feministstend to accept this firstapproachas an accuratedescrip-
tion of currentattitudes,but they are ambivalentas to the correctnormative
approach. They feel a life exhaustedby the privateis impoverishedand that
many of the tasks connectedwith care-givingand housekeepingare indeed
less valuable and less creative, less the stuff of great drama, than other
human activities. They would agree that the painting of the Mona Lisa is
rightly seen as a great humanachievementand would considerthe endeavor
a greatercontributionto our culture than that providedby the supportand
sacrificeof many mothers.57At the same time, however,many feministsfeel
that something is wrong with this devaluationof activities associatedwith
privatelife. They see a society in which there is no glory, pay, or prestigein
the daily task of raising children, but in which waging a bloody war is a
great human achievement. They believe that ours is a less humanisticsoci-
ety, a worse society, than one in which the essential human tasks receive
more prominence,recognition,and respect.58
Many feministsregardthe second description,which claims to value the
private above all else, as disingenuous. They see talk of love's importance
and centralityin the lives of men as either a way of maskinglust or a part of
the "opium"necessaryto keep women marginal,servile sex objects. It is a
way of makingan otherwiseundesirablefate more appealing. After all, they
say, men's lives are rarely exhaustedby their loves,59whereas the lives of
women who love "important"men are frequentlyexhaustedin a secondary
role.60 Consequently,many feministsdeny that anyonereally considerslove

56. See, e.g., Michelle Zimbalist Rosaldo, Woman, Culture and Society: A TheoreticalOver-
view, in WOMAN,CULTUREAND SOCIETY17, 19 (Michelle Zimbalist Rosaldo & Louise Lamphere
eds., 1974) (arguing that even in societies where women have power, they lack authority, and the
activities of men provide the sources of value).
57. Great individual sacrifice can also become the subject of drama and can be seen as the
highest of human achievements. For example, the lives of saints are certainly considered paradigms
of human sacrifice and achievement. One of the "public relations" problems of the private and the
caring activity that is done there is that there is so much of it. Although such continued sacrifices
are essential to human life, it is hard to find exceptional cases to serve as role models.
58. While most political philosophers who stressed the importance of the public were men,
some women joined the group. A notable example is Hannah Arendt, who endorsed both the per-
ception of the public (i.e. politics) as ennobling and the willingness to exclude women and workers
from this sacred realm, relegating them to the world of family and work. See ARENDT,supra note 9;
see also Hanna Pitkin, Justice: On Relating Privateand Public, 9 POL.THEORY327 (1981). Within
feminist scholarship, much of the debate, both descriptive and normative, relates to Gilligan's dis-
tinction between ethics of justice and ethics of care. See CAROLGILLIGAN, IN A DIFFERENT VOICE:
PSYCHOLOGICAL THEORYANDWOMEN'S DEVELOPMENT (1982). For a recent application of these
themes to judicial work, see Judith Resnik, Housekeeping: The Nature and Allocation of Work in
Federal Trial Courts, 24 GA. L. REV. 909, 953-63 (1990) (documenting how lower-echelon work is
often dubbed "housekeeping"and thus devalued through connection to domestic, female roles).
59. Emma Bovary's husband is one of those rare exceptions. For an eloquent description of
the role of romantic love in the lives of women, see KATEMILLETT,SEXUALPOLITICS 36-37 (1970).
See also MACKINNON, supra note 4, at 67.
60. This ambivalence does not apply to that form of privatization against which Arendt
November 1992] PUBLIC/PRIVA TE DISTINCTION 27

and family to be the ultimate sources of satisfaction.


Finally, most feminists find no fault with the third account as an ideal.
Their complaint is that, in social life as we know it, the two sexes do not
share access to the same range of choices. While some feminists concentrate
on the injustice done to women in this respect,61 others stress that present
arrangements harm both women and men.62 While men usually operate in
both realms, their unique role in the public realm causes them to be dis-
tanced and alienated from the values of the home. Some radical feminists,
however, see the focus on choice between private life and public commit-
ments as legitimating the decision to lead one's life without political
involvement.63

5. The myth of inevitability.


Finally, the division of life into two realms and the currently prevalent
family structures are often portrayed as inevitable or natural. Often this por-
trayal is coupled with a claim that existing arrangements are desirable, either
because women have a special disposition or ability to raise children (they
are more attached, compassionate, and caring), or because men are better at
the tasks of work and politics (they are more oriented to justice, intellectual
creativity, abstract thought, and sophisticated technology, and have the
physical ability to deal with heavy equipment), or both.
The inevitability and desirability of some division of life functions along
gender lines is a central controversy for feminism. First, there is an internal
debate over the question of whether there are differences in tendencies and
capacities between men and women. Some feminists, notably Carol Gilligan
and her followers, argue that there is indeed a tendency among women to
prefer an "ethics of care." Others deny that such a difference exists, or argue
that the difference results from socialization rather than from innate and
inevitable differences between the sexes. Most feminists are skeptical of
claims of inevitability, since they believe that such claims are attempts to
silence women, and, thereby, to perpetuate existing arrangements, discour-
aging critical examination.64

fought, the perception that many people prefer private life-work, family, and play-to a life of
political involvement. Men as well as women face this choice, and, in a world in which most polit-
ical actors are men, it may apply more aptly to them. While some feminists advocate political activ-
ism, there is nothing in feminism as such that necessarily values political involvement more highly
than enjoyment of the private (although feminists want women to have the choice). This is why I
have argued that the feminist politicization of the private should not serve as a denial of all possible
or desirable difference.
61. See, e.g., Catherine Hall, PrivatePersonsversusPublic Someones:Class, Genderand Politics
in England, 1780-1850, in BRITISHFEMINIST THOUGHT51 (Terry Lovell ed., 1990) (documenting
the ways in which women were excluded from politics).
62. For those who talk about harms to both males and females, see CHODOROW, supra note 34.
For a similar position, but from a male perspective, see JOHNSTOLTENBERG, REFUSINGTO BE A
MAN: ESSAYSON SEX AND JUSTICE(1990).
63. See, for example, the position of socialist feminist BarbaraHaber, as described in JAGGAR,
supra note 3, at 345-46.
64. See Sherry B. Ortner, Is Female to Male as Nature Is to Culture?, in WOMAN,CULTURE
AND SOCIETY,supra note 56, at 67. For a recent discussion of these issues offeringa more pragmatic
28 STANFORDLAWREVIEW [Vol. 45:1

Another heated debate within feminismconcerns the desirabilityof ar-


rangementsthat assign differentresponsibilitiesand functions to men and
women. Most classical and radical feministsadvocate equal access for wo-
men to the publicrealmsof work and politics. Some feminists,however,are
willing to concede that women have special responsibilitiesto their families,
and that these responsibilitiesmay imply some inequality between the
sexes.65 This controversyprovidesa naturaltransitionto the next subject:
the desirabilityof a differencebetween public and private.

C. ThereShould Be No Difference
We saw that a challengeto the public/privatedistinctionmay be moti-
vated by the belief that its invocationpromotesundesirablesocial arrange-
ments, or hinderstheir reform. This kind of challengepresupposesa specific
normativeposition: It is desirablethat there be no differencebetween pri-
vate and public, or, at least, that the differencesbe reduced.
Some of the claims challengingexistingarrangementsand perceptionsof
privateand public as they relate to women are uncontroversial.The claim,
for example, that domestic arrangementsmatter and should be integrated
into political philosophyand considerationsof justice is generallyaccepted.
In public/privateterms,this may be formulatedas a combinationof descrip-
tive and normativeclaims-the private(domestic)has been invisible,not fit
for public concern. This invisibilitycontributedto the devaluationof the
privateand to the failureof theoriesof justice to addressits structure. It also
led to the silencingand imposedprivatizationof women and their activities.
The normativeimplicationis clear: These arrangementsdeservemore atten-
tion and should becomemattersof public scrutinyand concern. Theoriesof
political and social justice should address them. And the "privateness"of
domestic arrangementsshould not deter scrutiny,or imply inviolability.66
There is much less agreementon the desirabilityor feasibilityof more
specific changes in the balance between private and public. Usually, when
the dichotomybetweenprivateand publicis challenged,the argumentis that
all is (or should be) public. But once we look at particularquestions,it is
rareto find feministswho argueconsistentlyeitherthat everythingshouldbe
regulated by the state, or that the family and all other forms of intimate
relationshipsshould disappearin favor of public communitiesthat provide
for the needs of members,make political decisions, and police the different
ways in which membersinteract. When pushed, feminists explicitly deny
that this is their ideal.67 They advocate only local changes in the existing

approach to the construction of gender, including feminist criticism of the dichotomies claimed by
Gilligan, see Joan C. Williams, DeconstructingGender, 87 MICH.L. REV. 797 (1989).
65. See JEAN BETHKE ELSHTAIN, PUBLIC MAN, PRIVATE WOMAN (1982); Judith Stacey, Are
Feminists Afraid to Leave Home? The Challenge of ConservativePro-Family Feminism, in WHAT IS
FEMINISM? 208 (Juliet Mitchell & Ann Oakley eds., 1986).
66. This view is shared by liberal feminists such as Susan Moller Okin as well as conservative
feminists like Jean Elshtain. See ELSHTAIN, supra note 65; OKIN,supra note 3; see also Pateman,
supra note 3.
67. See, e.g., Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal
November 1992] PUBLIC/PRIVATEDISTINCTION 29

mix of private and public and in the existing institutionalizationof both


realms, with more equal access to the two realms for both genders. They
also want the freedomto explore these questionsboldly and creatively.68
While there are particularcontexts in which a feminist agenda can be
identified as advocating a change in the public/private mix, it is hard to
specifyeven one context or dimensionof the distinctionin which the claim is
that the whole categoryof the privateis useless, or that privatestructuring
should be discontinued. The normative debates concern relationshipsbe-
tween privateand public, but their conclusionsdo not assert that the differ-
ences should be obliteratedor even greatly reduced.69

D. The Role of Language

Having reviewed the many ways in which feminists have attacked the
present uses of the public/private distinction, we must now return to the
external critique. Internal challengershave argued that political arrange-
ments should be critically discussed and that changes should be made in
private and public structures,including the traditionalreluctanceto inter-
fere in the private realm of the family. The external challenge makes the
furtherclaim that the public/privatedistinctionand its invocation,as such,
are partially responsiblefor the undesirablestate of affairs. Consequently,
the terminologythat distinguishesprivate and public and that invokes the
value of privacy should be abandonedor delegitimated.
Feminists agree that, in Western society, there is a differencebetween
private and public realms, and that this differenceis reflectedin language.
Some feministsargue that the distinctionis not gender-neutral;the distinc-
tion "keepsthe privatebeyondpublicredressand depoliticizeswomen'ssub-

Reform, 96 HARV.L. REV. 1497, 1568 (1983) (declaring that she is not, in fact, advocating totalitar-
ianism). For her vision of more complete males and females in an ideal society, see id. at 1577-78.
See also Alan Freeman & Elizabeth Mensch, The Public-PrivateDistinction in American Law and
Life, 36 BUFF.L. REV. 237 (1987).
68. Even one of the most radical feminist visions, that of Shulamith Firestone in The Dialectic
of Sex: The Casefor Feminist Revolution,see note 53 supra, keeps child-rearingin the frameworkof
an egalitarian household, and accepts the importance of intimate relations and love between individ-
uals. Radical feminists today argue for communitarian feminist structures, but maintain that these
should be governed by the womanculture, and not regulated by the state. In addition, they resist
ideas that the state and the law should regulate sexual practices among women. See JAGGAR,supra
note 3, at 270-82. Other feminist visions advocate differentrelationshipsbetween the family and the
worlds of the market and politics. Some, like Okin, seek primarily to make the classical nuclear
heterosexual family more egalitarian, while others criticize her for not giving sufficient weight to
alternative intimate relationships. See Will Kymlicka, Rethinking the Family, 20 PHIL.& PUB. AFF.
77 (1991) (reviewing OKIN,supra note 3). For both Okin and Kymlicka, intimate relationships are,
and should remain, private in important respects.
69. Surrogacy provides a dramatic context in which the competing feminist positions are for-
mulated in terms of the desirable mix between public and private. Feminist opponents of surrogacy
view the practice as an undesirable intrusion by the market into the sacred realms of the intimate
and the highly personal. See, e.g., Debra Satz, Markets in Women'sReproductiveLabor, 21 PHIL.&
PUB. AFF. 107, 108 (1992). Feminist supporters of surrogacy, however, see the question as one of
constitutional privacy: Women's control over their lives and bodies requires the autonomy to make
economic (private) choices, free from state (public) interference. See, e.g., SHALEV,supra note 44.
30 STANFORDLAWREVIEW [Vol. 45:1

jection within it."70 This argument is complex: The public is


simultaneouslya source of power and a fundamentalstructuringconcept
that affects beliefs and expectations. It is difficultto divide the argument
into more distinct elementswhile maintainingthe integrityof the argument.
On the other hand, the assertions being made are difficultto understand
without being broken down into componentparts. The following is my at-
tempt to separateout identifiableelements from the critique and evaluate
them individually.

1. Bad results.
The first, and primary,complaintof the externalcritiqueis that the use
of public/private language somehow leads to undesirableconsequences.
People who use public/privatetalk get the problems,not the terms, wrong.
They tend to reach solutions that systematicallydisadvantagewomen. The
best way to examine this claim is by studying a numberof examples that
allege such bad results.
Abortion. MacKinnon'scritiqueof Roe v. Wade71shows both the diffi-
culty of separatingthe complex argumentinto discrete elements as well as
the importanceof doing so.72 The bad resultMacKinnondiscussesis Harris
v. McRae,73in which the SupremeCourt ruled that a state has no obligation
to finance medically requiredabortionsand that this conclusion does not
affect the privacyrights of women. MacKinnonargues:
[T]heHarrisresultsustainstheultimatemeaningof privacyin Roe: women
areguaranteedby the publicno morethanwhatwe cangetin private-that
is, whatwe can extractthroughour intimateassociationswith men. Wo-
menwithprivilegesget rights.74
This complaintshould be analyzedin light of the generalclaim, made by
MacKinnon and others, that the liberal ideal of the inviolabilityof the pri-
vate uses the doctrineof privacyto protect the status quo. Becauseliberals
assume that what happens in the private is equal, free, autonomous,and
intimate, they assumethat these activitiesshould be protectedagainstviola-
tion by the public. Liberals,the claim goes, do not realize that privateine-
quality can, and often should, be redressedby the state. Equalitycan only
be achieved if there is public interference,not public abdication.75
In the abortioncontext, MacKinnonargues,this backgroundinequality
is systemicand profound;women cannotcontroltheir sexualavailabilityand

70. MACKINNON, supra note 46, at 102. For another illustration of the belief that the public/
private distinction between private and public is instrumental in the oppression of women, see
LINDA J. NICHOLSON, GENDER AND HISTORY: THE LIMITS OF SOCIAL THEORY IN THE AGE OF
THEFAMILY(1986). See also HESTEREISENSTEIN, CONTEMPORARY FEMINIST THOUGHT (1983)
(the second chapter is titled The Public/Domestic Dichotomy and the Oppressionof Women).
71. 410 U.S. 113 (1973) (holding that a woman's right to have an abortion falls within the due
process privacy right).
72. The most systematic account appears in MACKINNON, supra note 46, at 93-102.
73. 448 U.S. 297 (1980).
74. MACKINNON, supra note 46, at 100.
75. Id. at 94-100.
November 1992] PUBLIC/PRIVATE DISTINCTION 31

are often discouragedby social norms from protecting themselves against


unwanted sex, and its possible consequence-pregnancy.76 The primary
fight should be over ways in which women can gain control over their own
sexuality, not over ways to deal with unwantedpregnancy.77This fight re-
quiresstate intervention,interventionthat will speakto intimateand private
transactionsbetween the sexes.
MacKinnon'scritique of the doctrinalchoice of privacy in Roe is very
differentfrom the objectionsraised by other privacy scholars.78The latter
highlight the distinctionbetween freedom from intrusion and publicity on
the one hand, and freedom in the sense of noninterferenceon the other.
These privacy scholars would have been content had the abortiondecision
been analyzed in terms of (negative) liberty. MacKinnon'scritique, how-
ever, pertainsequally to liberalism'sideal of liberty (as in the liberty of the
homeless to sleep under bridges).
Under this view, the tension betweenRoe and Harris exists for all stan-
dard liberty rights. One illustrationshould suffice. Everyonehas the free-
dom to travel, but only those who can pay the fare can effectivelyexercise
the right. The state preventsunjustifiedinterferencedesignedto limit one's
physical freedom of movement, but does not provide funding for travel.
Although most people will arguethat this supportsthe conclusionthat free-
dom of movementis protected,it is also clear that this freedomcan and does
coexist with deep inequalities.79
MacKinnonarguesthat the abortionissue should be viewed in terms of
equalityratherthan privacyor liberty.80The fact that women bear the bur-
dens of reproduction,combinedwith the fact that they often cannot control
their sexual availability,constitutes one critical cause of the inequality of
women.81Since the right to an abortionis necessaryto mitigatethis inequal-
ity,82it becomes a matter of substantiveequality, not a claim to liberty or
privacy.
MacKinnonis wrong,however,in arguingthat the privacylanguagewas
not importantfor the decision in Roe. She incorrectlyclaims that Roe only
gave women what they could have obtained through private negotiations
with men, and she is wrong in asserting that the Harris decision became
more likely because of Roe's privacy rationale. Finally, the privacy frame-
work used in Roe can be justifiedin three significantways.
First, the use of privacyterminologyhelped secure for women the posi-

76. Id. at 94-95.


77. Id. at 95-96.
78. See, e.g., ALAN R. WHITE,MISLEADING CASES99-111 (1991); Gavison, supra note 16.
79. Recent abortion decisions are very careful not to mention privacy and talk instead of the
woman's "liberty interest." Webster v. Reproductive Health Servs., 492 U.S. 490, 520 (1989). This
change in terminology, in itself, has changed neither the Roe-Harris tension, illustrated once again in
Rust v. Sullivan, 111 S. Ct. 1759 (1991), nor the unclear fate of the Roe decision.
80. See MACKINNON, supra note 4, at 246; see also Frances Olsen, UnravellingCompromise,
103 HARV.L. REV. 105 (1989).
81. MACKINNON, supra note 46, at 94-96.
82. See id.
32 STANFORDLAWREVIEW [Vol. 45:1

tive outcome found in Roe. A "liberty"rationalewould have been a less


attractiveand less likely candidate,since the Courtneededto distinguishthe
substantivedue processrationaleestablishedin Lochnerv. New York.83But
the privacy rationalewas, in fact, a limited liberty rationalethat the court
was willing to use. The Courtwas not readyto endorsethe more radicaland
controversialanalysisviewing abortionas a matter of equalityor as follow-
ing from the woman's right to control her own body.84
Second, Roe gave women a lot more than they could have obtainedin
private. Most obviously,Roe and its progenyreleasedwomen from the costs
of illegality-both the extremelyhigh prices charged for abortionsby doc-
tors who risked their licenses by performingthe procedure,and the grave
health risks faced by women undergoingabortions in substandardcondi-
tions. Roe and its progenyalso made a woman'schoice largelyindependent
of the approvalor consent of her fatheror husband.Womencould not have
achievedthese advancesin their intimatenegotiationswith men. These ben-
efits were derivedfrom the public decision to decriminalizeabortion.
The third, and perhapsmost significant,point in this context is that the
Harrisdecisionwas not made more likely by the Roe privacyargument. The
concept of liberty contains the very same tensions and could have justified
the same result. Furthermore,a commitmentto fight againstinequalitybe-
tween the sexes may be very differentfrom a commitmentto fight against
inequality based on class or wealth. The equality argument MacKinnon
puts forwardis expressedin termsof gender. Even if it had been acceptedby
the Court,the argumentwould have been unlikelyto producea commitment
to economicequality.85The Harrisholding may be one possibleimplication
of basing a woman's right to an abortion on the desirablelimits of legal
interference. But we should recall that neither privacynor liberty reasons,
on their own, justify noninterference.To justify noninterference,we must

83. 198 U.S. 45 (1905). The detailed substantiation of this point goes far beyond the scope of
this paper. It should, nonetheless, be noted that any difficultieswith invoking liberty in Griswold v.
Connecticut, 381 U.S. 479 (1965), and in Roe were not logical difficulties. A distinction could be
made between issues of personal liberty (as in contraceptives and abortion) and those of economic
freedom (the freedom of contract in Lochner). Those who seek to justify the Griswoldprogeny make
precisely this distinction. Acknowledging that invoking simple liberty as a justification for Griswold
was not an attractive route is a concession to external critics. The choice of terms and metaphors
does matter.
84. The question of the best way to formulate or present an issue is not unique to abortion.
Compare the difficulties feminists and others are having in dealing with pregnancy and child-birth
benefits for women. For an attack on gender-neutral discussions of abortion, see MACKINNON,
supra note 4, at 184-94. For an analysis of the struggle to enact a law guaranteeingchildbirth leave,
including the question whether it should be conducted in terms of the welfare of women, or in terms
of the welfare of all persons with family responsibilities,see Christine A. Littleton, Does it Still Make
Sense to Talk About "Women"?,1 UCLA WOMEN'SL.J. 15, 19-37 (1991).
85. However, had Roe been decided using an equality rationale, it would have been more diffi-
cult for the Court to argue in Harris that the Roe Court merely engaged in noninterference while
refusing to deal with background conditions. Accepting the right to an abortion as a condition of
gender equality would mean accepting the necessity of addressing unequal background conditions.
Nevertheless, the history of equal protection shows that the different sets of background conditions
that generate inequality are seen as distinct for purposes of state interference. Some of these differ-
ences may be justified.
November 1992] PUBLIC/PRIVATE DISTINCTION 33

show that the reasonsfor not interferingare not outweighedby reasonssup-


portinginterference.Roe, then, standsalso for the propositionthat this situ-
ation does not exist in the case of abortion.
The differencebetweenthe libertyand the equalityrationalesis less stark
than MacKinnon claims. Although noninterferenceis sometimessufficient
to protectliberty,at other times positiveinterferenceis required. Just as the
full protectionof equality may requiresome change in the underlyingine-
quality, the full protectionof libertymay requiresecuringthe preconditions
for its meaningfulexercise.
At times MacKinnon suggests that this is precisely where privacy lan-
guage becomes responsiblefor these bad results:
The liberalideal of the private-and privacyas an ideal has been formulated
in liberalterms-holds that, so long as the publicdoes not interfere,autono-
mous individualsinteract freely and equally. Conceptually,this private is
hermetic. It means that which is inaccessibleto, unaccountableto, uncon-
stricted by anythingbeyond itself.86
But, as we saw above, inaccessible,unaccountable,and unconstrictedare
different,even if they are all sometimesdubbed"private." If the privateis
that which is unaccountableto others, then privacyin this sense cannot be
an ideal. It functionsmerelyas a definition,or a description. When we talk
about the ideal, we talk about the strongnormativesense of the private: that
which should not be subjectto interference.The focus then becomescareful
analysis of not only the activities and situations that should be free from
interference,but also the reasonsfor providingthat immunityfrom external
regulation.
We have now discussedtwo differentmechanismsthat allegedlyexplain
the manner in which language is responsiblefor the bad result in Harris.
One is formal: Since "private"is defined as that which is (or should be)
inaccessibleor uninterferedwith, the use of privacy is simply conclusory.
What appearsto be a doctrinalchoice is really explicablein Realist terms.
MacKinnon,presumably,thinks this is a fancy way of protectingthe status
quo. But Roe was widely perceived as an extremely significantpolitical
change affectingthe status quo, which allowed states to prohibitabortions.
Indeed, if a doctrine is really conclusory, it cannot explain or justify the
results reached through it. This is precisely what we mean by saying that
the move is conclusory. The argumentsofferedfor Griswoldand Roe may
have been wrong and confused,but the decisionsare not conclusory. To say
otherwise ignores the reasons actually presentedin support of a woman's
right to make her own decisionsregardingcontraceptivesand abortionwith-
out state intervention.
The second alleged mechanismis substantive: Privacy languagehelped
to make available a bad doctrinal choice. According to MacKinnon, the
privacy rationaledoes not provide adequateprotection,and it protects for
the wrong reasons. The privacyrationalewas employedbecauseit offereda
86. MACKINNON, supra note 46, at 99.
34 STANFORDLAWREVIEW [Vol. 45:1

way out of the Lochnerdead end. The privacyargumentidentifiedreasons


for which noninterferencewas justified: the personalnature of the choice;
the intimatearea of life involved;and the centralityof the decision to one's
self-identity. All of these reasonshelp to justify the choice of privacy over
liberty arguments.
These reasons also raise several related questions. First, when we con-
sider whether or not to prohibit abortion by law (a paradigmaticform of
interferenceby the public), are the factors mentioned above relevant? Is
there indeed a presumptionin favor of noninterferencein intimate and ex-
tremely personal aspects of one's life? Can the abortion decision be de-
scribedin these terms? My answersto these questionsare affirmative.The
presumptionmentionedis not irrebuttable.It should not, for example,grant
immunityto those who are violent at home. But it does apply to the deci-
sion to abort, a decision which is central to a women's self-identityand her
sense of control over her own life.87 Furthermore,while we have described
the reasonsfor grantingthe presumptionfor noninterferencein nonprivacy
language,the meaningsof "private"listed above indicatethat there may be
linguistic supportto identify this cluster as having to do with privacy.
Second, could a woman's right to decide whether to abort have been
based on differentgroundsby the Courtin 1973? If so, would the alternative
doctrine have better served women in 1980 or today? These are difficult
counterfactualquestions,but my readingof the history of the abortionissue
is that the Roe Court did not want any versionof equalityprotected. More-
over, the legislative,political, and judicial developmentssince then have not
had much to do with the Court's particulardoctrinal choice. If Roe had
been justified in ways that would have precludedthe result in Harris, the
substantiveright protectedby Roe may already have been overruled. The
choice of privacy/liberty over a more radical feminist analysis may have
givenRoe both its relativelimitationsand its greatsymbolicstayingpower.88
Third, does the choice of privacylanguageobscurethe fact that abortion
is really only a small part of broaderand deepersocial attitudestowardwo-
men and sexuality? Is much more than a woman'sright to decide whether
to have an abortion at stake? Does full equality for women require "the
explosionof the private,"with its concomitanthiddenassumptionsof equal-
ity and freedom,and the exposureof the reality of inequality? It may. But
the privacyrationaleas formulatedin Griswoldand Roe was not intendedto
be the best formulationof feminism. It was meant to identifyonejustifica-
tion for the decision to constitutionallyprotect the right to legal abortions.

87. My argument does not deny the relevance of the personhood or life of the fetus. I am not
suggesting that abortion is private(self-regarding). The presumption in favor of liberty may be de-
feated if abortion is indeed murder. This may counterbalancethe desire women have to control their
bodies and their lives. But see Judith Jarvis Thomson, A Defense of Abortion, 1 PHIL.& PUB. AFF.
47 (1971) (suggesting that even if abortion is the killing of an innocent person, a woman's right to
control her body trumps the right of that innocent person to be kept alive).
88. MacKinnon might concede this. But then she would also need to acknowledge that the
doctrinal choice was helpful in facilitating the recognition of a right to abortion.
November 1992] PUBLIC/PRIVATE DISTINCTION 35

One can agreethat privacyis not enoughwithout concludingthat the choice


of privacy argumentsin the Roe context was a setbackfor women.
It seems, therefore,that with respect to abortion there is no necessary
connectionbetween the use of the public/privatedistinctionor privacyter-
minology in Roe, and the unfortunateholding of Harris.
Domestic violence. Domestic violence is another frequentlycited exam-
ple of the bad consequencesresulting from the public/private distinction.
Here, the argumentis that family relationsare seen as paradigmaticallypri-
vate. In part, this is basedupon the assumptionthat family relationshipsare
voluntary and equal. Consequently,there is a presumptionthat these pri-
vate relationsshould be free from externalinterference.Often people,incor-
rectly,jump from the accuratedescriptionof family relationshipsas private
to the conclusion that no interferenceis justified, without examining the
truth of the initial assumptionsor contraryconsiderationswhich might de-
feat the presumption.
Such a leap constitutes an obvious mistake in practical reasoning. In
part, this mistake results from equivocation,and thus may be attributedto
languageor terminology. As we saw in Part II, the key term "private"may
be used in at least three differentsenses. First, "private"may indicate the
highly personaland intimatereasonsfor the presumptiveentitlementof fam-
ilies to be free from interference. Second, ascriptionof privatenessmay be
an invocation of the presumptiveentitlement,to be weighed against other
featuresof the situation. Third, its usage may indicatea conclusionthat, all
things considered,the activity should not be interferedwith.
Public treatmentof domestic violence is plaguedby dubioususes of the
notion of privacy. The police are often extremely reluctantto interferein
domestic disputes,even when violence is alleged. Often, the reason offered
for this reluctanceis the privatenature of the marital relationship.89
The potentialfor confusiongeneratedby this varietyof uses is not unique
to the public/privatedistinctionor to the feministcontext. In fact, this kind
of problem is pervasivein legal reasoning,especially when the conclusion
must be justifiedin terms of interpretationsof authoritativetexts.90 More-
over, the confusion appearsin many differentfields of the law. Although
these mistakesshould be avoided,a reformof the languageand the terminol-
ogy is not necessarilythe cure.
Reformingthe languageby delegitimatingthe use of "private"and "pri-
vacy" will not clarifydistinctionsbetweendescriptiveand normativeclaims.
The descriptive-normativeambiguity exists for all alternative candidates.
Some terms, such as "highly personal,"may not have a purely descriptive

89. See, e.g., MACKINNON, supra note 46, at 101 ("[T]he legal concept of privacy can and has
shielded the place of battery, marital rape, and women's exploited labor.").
90. These difficultieslead to the skepticism of the Legal Realists. One form of this skepticism
was the claim that key terms attain conclusory meanings. For example, because the Constitution
provided that property shall not be taken without compensation, the meaning of property became
that which should not be taken without compensation. For the general program of the Realists, see
Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 COLUM.L. REV. 431 (1930).
36 STANFORDLAWREVIEW [Vol. 45:1

sense, because what is central to one's self-identityis probablya matter of


constitutiverules and expectations. But all substitutetermshave uses which
referto people'swishes and perceptions,as well as senses which referto the
conclusionsof normativearguments. Adopting words other than "private"
and "public"to discuss what should be free from state regulationmay help
us to avoid some potentialsources of mistakes,but the new terms may gen-
erate their own ambiguitiesand risks.91
Although this argument cannot, therefore, support the external chal-
lenge, it does draw our attentionto a context in which impermissibleinfer-
ences in practicalreasoningare likely to be made. Recallingthat the private
is sometimesthat which is intimateand highly relatedto self-identityand, at
other times, that which should not be regulatedby the state or enforcedby
police action, we can carefullyguardagainstunthinkinglyconflatingthe dif-
ferent senses. But it is unlikelythat there are alternativeways of expressing
these ideas that will, by themselves,overcomethe potentialfor confusion.
Another readingof the bad resultsargumentassociatedwith the problem
of domestic violence does not depend on the notion of equivocation. The
languageof privacy,allegedly,masksa form of ethicalconfusion. Use of the
languageof public and privatesuggeststhat there are valid reasonsfor pro-
tecting the private from state regulation. But under present social condi-
tions, and in contrast to this implication,women have no interest in such
protection.92For them, the intimateand the realmof family life is neithera
realm of freedom,nor a haven in which the dignity of self-directioncan be
cultivated. To the contrary, in private, women are exploited and abused
with impunity.93 Women should, therefore,recognize that invocations of
the value of privacyare a meansof perpetuatingtheir oppressionby creating
the false impressionthat the protection of privacy is good for women, by
isolating them, and by depoliticizingtheir struggle.94
This assertionraises a substantivemoral and political question. In pri-
vate, women may be vulnerablein ways that are beyond the scrutiny and
censure of the public. Does it follow, then, that women have no interestin
the values of privacy and intimacy, or that there are no contexts in which
women would want to keep the state out of their lives? Presumably,even for
91. This point is illustrated by Michelman's suggestion that "personal"replace "private." See
Michelman, supra note 46. Michelman correctly notes that what should be kept free from interfer-
ence (the private) is a public question. Id. at 1794. He opposes the idea that the mere use of the
term "private" should preclude further debate on the matter of interference. Id. at 1792-94. The
way to avoid this, he suggests, is by talking about "personhood"rather than "privacy." Id. at 1790.
It is not clear why identifying things as "personal" will be less susceptible to conclusory and
mistaken arguments. Margaret Jane Radin's article, Propertyand Personhood, 34 STAN. L. REV.
957 (1982), which Michelman cites, provides an apt illustration: Which aspects of property involve
personhood? Rather than pointing the way out, Radin's work exhibits a tension between her empha-
sis on the values of personhood and the risks of commodification on the one hand, and her endorse-
ment of the feminist invitation to abolish the distinction between private and public on the other.
For a similar critique, see Jed Rubenfeld, The Right of Privacy, 102 HARV.L. REV. 737 (1989).
92. See MACKINNON, supra note 46, at 101.
93. Id.
94. Id. at 101-02. This is related to the point made above regarding the identification of the
personal and the political. It is no accident that MacKinnon connects the two. Id. at 100.
November 1992] PUBLIC/PRIVATEDISTINCTION 37

MacKinnon, the answer is no. Therefore, we must differentiatebetween


good arguments,derived from the values associatedwith privacy,and bad
arguments,in which referenceto the same values is used to mask exploita-
tion and abuse. This distinctionis not a matterof language,but a matterof
the featuresof the specificsituationsinvolved.
Some legal scholarsmay then respondthat what is protectedis not really
privacy or intimacy, but the value of what is done within them. Intimacy,
importanceto self-identity,and choice are not necessary,on the one hand, to
justify protectingactivities which are valuablein themselves. On the other
hand, when the activitiesin questionare destructive,their inaccessibilityor
possibleintimacyshould not count as reasonsfor protectingthem. In other
words, the substanceof the activity,ratherthan its publicor privatecontext,
determinesits value.
This responseis misleadingin two ways. First, while privacy and inti-
macy should not provideblanketimmunityfrom public interference,it does
not follow that we alwayslook at the substanceof the activityratherthan its
context. The value of privacyand inaccessibilityincludes not only the pro-
tection of activities which are desirable,but also some activities which are
undesirable. This is especially true for activities that many regard as vic-
timless sins, such as homosexualconductbetweenconsentingadults. We do
not want to reduce the question to a debate about the morality of the con-
duct. Politically, it is quite clear that such debatescould result in prohibi-
tions, even though many people who believe that this conduct is immoral
may opposecriminalizationdue to its close relationto self-identityand phys-
ical intimacy.
Such considerationsprovide powerful arguments against perspectives
which examine only the substantive morality of conduct. Generally, we
want to affordimmunity for voluntaryconsensualassociationswhere con-
sent and freedom are not illusory. If we accept that such situations exist
even in our gendered,unequalsociety, then intimacyand privacydo operate,
presumptively,to limit interferencewithout requiringthat we publiclyjudge
all behavioron its moral merits.
We may also wish to protectthe privacyor the intimacyof relationships
among individuals. Some of these relationshipsare institutionalized,such as
the family and small clubs; others provide the backgroundagainst which
individualsgrow up and live (variousaffectivecommunities). The protection
of such associationsand groupsrequiresa measureof state noninterferenceif
such associationsare to provide the functions for which we value them.95

95. For the importance of privacy to groups, see Kenneth L. Karst, The Freedom of Intimate
Association, 89 YALE L.J. 624 (1980). It is ironic that feminists would challenge this, since they have
been acutely aware of the importance of the consciousness-raisinggroup with its intimacy and exclu-
sion. At the same time they have successfully challenged, on grounds of illegal discrimination, the
exclusionary provisions in some exclusively male social clubs. Thus, women know well the benefits
and difficultiesof independent social groups. For the centrality of consciousness-raisingto feminism,
see MACKINNON, supra note 4, at 83-105; Katharine Bartlett, Feminist Legal Methods, 103 HARV.
L. REV. 829 (1990).
38 STANFORDLAWREVIEW [Vol. 45:1

Small associationsare protectedthroughthe restraintof externalforce. In-


terferenceonly occurs in the case of blatant violations of members'rights,
while it seeks to insurethe voluntarinessof the association,and the viability
of exit as an option.96
Finally, many feministsconcede that privacyis, and ought to be, impor-
tant to men as well as women. The substantivechallenge to the private
made by some can be linked to a challenge familiar from communitarian
critiquesof liberalism:While viewingprivacyas valuablehighlightsthe im-
portance of individualismand the freedomto be left alone, it obscuresthe
dangersof lonelinessand alienation-the second face of privacy.97This at-
tack on privacythough, identifiesthe wrong culprit. The freedomto decide
when and with whom to associate is more often than not exercisedby the
choice to be a memberof a strong affectiveassociationor network. What is
kept privateand what is sharedwith others may change, but some sense of
privatenessand identity is a necessary presuppositionof healthy relation-
ships and communities. It is not through respect for privacy that people
become alienatedand lonely.
Pornography.A somewhat differentrole for the public/privatedistinc-
tion is allegedlyinvolvedin the discussionof the legal regulationof pornog-
raphy. The bad results identifiedare decisions like AmericanBooksellers
Ass'n v. Hudnut,98in which an anti-pornographylaw was struck down as
unconstitutionalfor attemptingto prohibitspeech on the basis of content.99
MacKinnon tries to justify anti-pornographylegislation in many ways.
First, she denies that speech is involved,insteadcharacterizingpornography
as action.l1? Second, even if pornographyis consideredspeech, the liberal
protectionof this freedomallows prelegal,social powers to impose pornog-
raphyand its harmson women. Moreover,this permissionrequiresa public
decision not to legislativelycontrol pornography'sharms, including the si-
lencing and repressingeffects privatepornographyimposes on women.101
Michelman'ssympatheticanalysisof this argumentlinks it to the idea of

96. I believe that the feminist movement should have a similar goal; we should strive to make
intimate relationships truly voluntary, and then provide them relative autonomy and immunity.
Note, though, that this struggle may be much more difficult than the struggle to regulate existing
relationships. Clearly, much long-term work is needed, including the extension of notions of accept-
able relationships beyond the heterosexual marriage. The process would not be complete without a
more careful understandingof the limits of the presumptionof immunity. But I believe that not only
will this process result in a net gain to women's (and men's) freedom, but it will also avoid the
dangerous course of eliminating the presumptive privacy of personal relations.
97. See, e.g., Freeman & Mensch, supra note 67.
98. 598 F. Supp. 1316 (S.D. Ind. 1984), aff'd, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S.
1001 (1986).
99. Note that MacKinnon also raises a different public/private problem regarding pornogra-
phy: The Court allows the viewing of pornography at home, see, e.g., Stanley v. Georgia, 394 U.S.
557 (1969), but refuses to allow pornographic images on public billboards. See MACKINNON, supra
note 4, at 204-05.
100. For a detailed analysis of this claim, see Melina Vadas, A First Look at the Pornography
Civil Rights Ordinance:Could It Be the Subordinationof Women?,84 J. PHIL.487 (1987).
101. See MACKINNON, supra note 4, at 195-214.
November 1992] PUBLIC/PRIVATEDISTINCTION 39

"stateaction"found in Americanjurisprudence.102Under this legal theory,


constitutionalproblemsarise only when the State or its officialsare acting.
In our terms, Americanconstitutionallaw, accordingto this analysis,is ex-
clusively concernedwith the dangersof abusingpublic power, but not with
using that power to regulateand mitigate possible abuses of privatepower.
Michelmanechoes, in more generalconstitutionalterms, one feministargu-
ment: We want more public protectionbecausethe privateis not a haven of
harmony and affectionand equality. We are more profoundlyabused and
oppressedby privatepower than we are by exercisesof public power. The
oppressionof women is, thus, primarilyprelegalin character.
Again, without assessing the validity of this argument in substantive
terms, it is not clear why this is an argumentfor abolishingthe public/pri-
vate distinction. Michelmaninvokes the distinctionto clarify the substan-
tive mistake that allegedly obscures the Court's vision.103 This is a "too
much difference"type of argument-it deniesthat publicand privatepowers
should be seen as differentin order to justify the automatic and absolute
prohibitionagainstthe use of publicpower to control possibleharmsby pri-
vate ones. The competing visions of Michelman and the Court require a
differentbalancebetweenpublicand privatepowers,not a blurring(or aboli-
tion) of the distinction. Therefore,this is an argumentfor public/private
terminology,rather than an argumentagainst it.
MacKinnon's unique argumentfor the regulationof pornographyis a
profoundchallengeof the entitlementof the privateto noninterference.Por-
nography, according to the feminist definition, is not merely an external
messageabout the relationshipsbetween males and females;instead,it rein-
forces the perceptionof male sexualityas violent and abusive. Pornography
is so powerfulbecause images of male sexuality as violent and exploitative
are so pervasive. These imagesgo to the essenceof male self-identity,to the
most private elements of male personality. Full freedom,equality and dig-
nity for women will be hinderedas long as male self-identityis allowedto be
definedin these terms. These publicvalues,therefore,requirea public-spon-
sored change, maybe even legal regulation,of the most intimate and most
private parts of many men's experience. The languageof privacy obscures
the real issue by drawingdistinctionsin the wrong places. That pornogra-
phy may be viewed in privateis not what is important. Similarly,it is not
importantthat the things to be regulatedpertainto the most intimateaspects
of men's self-identity. Since pornographyat home and males' self-imageaf-
fect the relationshipsbetween the sexes in deep and undesirableways, the
public should seek to regulatethese privateareas.
MacKinnon is right in stressing that, on the one hand, whatever goes
into the constitution of one's sexual self-identitywill be intimate, private,
and centralto personhood,and that, on the other hand, one's self-identityis

102. Frank Michelman, Conceptionsof Democracy in American ConstitutionalLaw: The Case


of PornographyRegulation, 56 TENN. L. REV. 291 (1988).
103. Id.
40 STANFORDLAWREVIEW [Vol. 45:1

also determined,to a large extent, by publiclyavailableimagesand possibili-


ties. Consequently,we are concernedboth with the contentthat the public
forms should encourage(so that more private identities might conform to
them) and with the ways in which this result should be promoted. This
debate, which clearly presupposessome public/privatedistinction,also re-
quires considerationof the entitlement of the private to noninterference.
Discussionof these issues will not improveif one of the competingcategories
is taken away.104

2. Dichotomizationand reification.
Another charge is that linguistic frameworksand distinctionspervade
our thinkingand limit our vision and our hopes. In this vein, FrancesOlsen
has made a powerfulargumentconcerningthe distinctionbetween the pri-
vateness of families and the publicnessof markets.105
Olsen is aware that "the personal is (the) political" may be seen as an
invitation to a totalitarianismin which all, indeed, is political.106While at
times she alleges that the inherent conflict is unique to liberalism,107at
others she concedes that the conflict between individualityand relatedness,
and the differencesbetween work and social interaction,are immanentfea-
tures of the human conditionsas we know them.108Olsen identifiesthe in-
herent conflict in terms of dichotomies that "stunt human growth by
avoiding and displacingconflict-conflict within the individualpsyche and
among people."'09 Since the dichotomies serve to externalizethe conflict
throughcompartmentalization,we must transcendthem if we are to resolve
the actual conflict.
According to Olsen, the dichotomiespolarizeour world into the public

104. There is a tension in MacKinnon's thought on this issue. On the need to fight pornogra-
phy she says: "Sexuality free of male dominance will require change, not reconceptualization,tran-
scendence, or excavation. Pornography is not imagery in some relation to a reality elsewhere
constructed.... It is sexual reality." CATHARINE A. MACKINNON, Not a Moral Issue, in FEMINISM
UNMODIFIED, supra note 45, at 149 (last two emphases added). MacKinnon denies that images and
metaphors simply affect preexisting sexual identities which can be independently identified. What
individuals are, or become, is determined by the norms of the society in which they were raised.
However, MacKinnon then argues that since this identity is already a part of a given reality, it can
only be changed by altering the underlying reality, and that reconceptualizationcannot be enough.
Strikingly, she is in fact affirming that there is more to reality and changes in it than changes of
vocabularies and ways of seeing. This concession opens up the fascinating and difficult question, not
discussed by MacKinnon, of the relationshipbetween language and reality, and the implications that
relationship has for programs advocating political change.
One possible claim is that, while languages and imagery alone do not determine reality, they
may facilitate ways of perceiving it and thus affect our chances of changing it. This may be true. If
so, then an external challenge of terminologies must establish that undesirableresults are connected,
in important ways, to linguistic uses. While the change that we desire may be facilitated by a recon-
ceptualization, MacKinnon cannot be arguing that the two are interchangeable.
105. Olsen, supra note 67. The argument is similar to that found in Klare, supra note 25.
106. Olsen, supra note 67, at 1568.
107. Id. at 1564.
108. Id. at 1568.
109. Id. at 1569.
November 1992] PUBLIC/PRIVATE DISTINCTION 41

and the private.10 Our effortsat reformbecome attempts to give markets


more of the strengthsof families (for example, limiting the right to fire at
will) and to give families some of the strengths of markets (protection
againstexploitationand abuse). These reformswill inevitablyresultin some
gains and some losses. If, instead, we transcendthe dichotomy, we will be
able to reformthe situation in more creativeand integrativeways.
Can we transcendthe dichotomy? As Olsen herselfstresses,real markets
and families are more complex than their "ideal types.""' One can agree
with Olsen that, if we see the world outside as heartless,we are forced to
seek happinessin a private haven; conversely,those who are disappointed
with their families and love lives invest their energiesin their work."12But
this seems to be a naturalreactionto failurein achievingthe ideal sharedby
all: a life with a good balancebetween intimacy and success, between per-
sonal and public commitments. This ideal is integratedand whole; it does
not requirea transcendenceof dichotomies. It is simply the rich life based
on a mixture of differentexperiences,all of which are valuable.
Dichotomiesconfuseonly if we believethat we must choose in an either-
or fashion. They point out that we cannot have everything,and that any
balancedlife requiresan ability to give up things that are incompatiblewith
others that we value more. For instance, complete freedomcannot coexist
with meaningfulcommitmentsand relationships.Similarly,one cannotboth
pursue a demandingcareer and always be available to and supportiveof
others. I believe, however,that the problemsOlsen describesare of the sec-
ond type. If so, then transcendenceis a dangerousillusion rather than a
liberatingrelease from constrictivevocabulariesand habits of thought.
3. Inevitabilityand naturalness.
PerhapsOlsen'spoint is that wordsmay createmisguidedfeelingsof nat-
uralness and inevitabilityand that these, in turn, may affect our ability to
move toward change. The private and the public, when distinguished,be-
come reifiedand seem to be partof reality,a given to be reckonedwith, not a
person-madeconstructionwhich can be challengedand transformed.
Feministanthropologistshave helpedus to see both the strengthsand the
limitationsof these claims. People, clearly,can structurethe contentof their
public and privatelives differently,and men and women can adopt different
kinds of relationships. Particulararrangements,therefore,are neithernatu-
ral, nor inevitable. On the other hand, some featuresare disturbinglypersis-
tent across cultures. The presence of these persistent features cannot be
explainedmerelyby the fact that womenbear children,concededlya natural
fact in the strongestsense. 13
110. Cf. notes 24-30 supra and accompanying text (feminist critique of common themes that
stem from the public/private distinction).
111. Olsen, supra note 67, at 1565-66.
112. Id. at 1566.
113. Technology can make a difference, of course. Previously, it seemed not only natural but
inevitable that women must nurse children. Now, this is no longer necessary. Still, in most cultures,
42 STANFORDLAWREVIEW [Vol. 45:1

Again, we are not looking at the obvious,though complex,effectsof per-


ceptions of naturalnessand inevitabilityper se. Rather, we are trying to
identify the contributionof conceptual schemes and distinctions to these
feelings. If all terms and concepts came with ontologicalcommitments,we
would have difficultyassertingthat somethingdoes not exist, or should not
exist. Clearly,our languageis more flexiblethan that. Olsen'sideal reflects
an integrated,not alienated,human existence,one that is not compartmen-
talized into distinctand autonomousrealms. I fail to see how identifyingthe
variouselementswhich togetherform human well-beingunderminesthe re-
alization of this ideal.
As mentionedabove,feministsoften concedethat their ideal is not a state
of affairsin which nothing is private. Consequently,the public/privatedi-
chotomy does not discouragethe perceptionof the feministideal. Moreover,
since the ideal life requiressome minimum of both private and public as-
pects, even the weakerargument-that languagemakesperceivingand artic-
ulating options and visions more difficult,ratherthan impossible-does not
seem to apply to the public/privatepair.1"4

4. Paralysisand isolation.
Finally, the externalcritiqueof public/privateterminologyrests on the
claim that it has been used as one of a number of tools obscuring and,
thereby,perpetuatingthe oppressionand subordinationof women. This was
achievedby privatizingwomen in a combinationof ways that togethermade
them invisible, isolated, powerless, devalued, ashamed, and more likely to
perceivetheir predicamentas individualizedand personal.
This paralyzingeffect is achieved by invoking differentconnotationsof
the private. Women internalizean understandingof the privatewhich pre-
supposesits identificationwith female roles, as well as an acceptanceof that
role as natural and inevitable. What is dubbed "private"should not be
shared. Instead, it should be kept "in the family." If somethingis wrong
there, it is the individual'sfault; individualproblemsshould be hidden, re-
pressed,and managed.
As I have alreadymentioned,I believe feministshave succeededin iden-
tifying and documentingreal and dangerouspatternshere. Clearly,we want
to make languageusers awarethat unjustifiedinferencesare often made, and
we want to minimize faulty inference. However, if there are differencesbe-
tween privateand public that must be maintainedand invoked,the delegiti-
mation of the distinction and the correspondingvocabulary will make
meaningfulcommunicationand discourse more difficult. Furthermore,as
mothers carry a large part of the responsibilityof caring for young children. Some feminists, notably
Shulamith Firestone, have indeed argued that women cannot be equal unless they are freed of
childbearing. See FIRESTONE, supra note 68.
114. Olsen switches, at the end of her paper, from talking about the distinction between private
(or family) and public (or market) to that between man and woman-a distinction that is more
heavily laden with stereotypical and limiting associations and nuances. See Olsen, supra note 67, at
1560-78.
November 1992] P UBLIC/PR I VATE DISTINCTION 43

we have seen, the move to the externalchallengecreatesadditionaldangers.


For instance,we want to fight the sense of shame which makes women un-
able to express their privatetragedies,but do we also want to eradicatethe
notion of shame?115Where we identify undesirableprocesses, we should
seek to change them. Where languageconstitutesor facilitatesundesirable
processes, we should fight against these as well. But it is self-defeatingto
throw away importantconceptualtools which are essentialto clear thinking
about these issues.

IV. CONCLUSIONS

The feminist challengeto the public/privatedistinctionand the ways in


which the distinction has reinforced social trends is fascinating and re-
vealing. It providesa rich illustrationof the senses of privatenessand pub-
licness, as well as insight into the ways in which the ambiguityof termsmay
lead to errors in practical reasoning. Furthermore,the feminist challenge
highlights both the costs of coerced privatization,and the importanceof
public cultures in the personallives of individuals. It providesa strong re-
minderthat "out of sight is out of mind,"that low visibilityand suppression
distort public perceptionsof what is important. Finally, the feminist chal-
lenge raises importantquestions concerningwhat the ultimate values and
institutionalstructuresof human life in society can and should be.
Feminists are aware of the importance of privacy, intimacy, and the
sense of human dignity, all of which are connectedto the values of the pri-
vate. In fact, the intensityof their argumentsflows from the belief that wo-
men deserve more of these goods than they presentlyreceive.
Against this background,the appeal of external challenges should be
clear. Women feel that for too long we have been ignored,becausewe have
been seen as private and unimportant. Furthermore,we feel that for too
long our lives and our complaints have been ignored because they lacked
visibility. We are now extremely reluctantto endorse a voluntaryprivate-
ness, and to see it as a value. It seems right that the very languagein which
these suggestionsare couched, the very naturalnessof talking and thinking
in these ways, are part of what we would want to rebel against.
However, fighting the verbal distinction between public and private,
rather than fighting invalid argumentswhich invoke them, or the power
structureswhich manipulatethem in unjustifiableways, is as futile as seek-
ing individualtherapy for problems of social structure. Some women are
angry that their energieshave been channeledtoward futile individualther-
apy and away from political struggle. We should be just as angry at those
who invite us to fight against words and ways-of-seeing,instead of fighting
the real obstacles obscuring our visions of the good life. Even more dis-
turbing,this new vision of the good life is often missing,while its absenceis
115. See, e.g., CARLD. SCHNEIDER, SHAME,EXPOSURE, AND PRIVACY(1977) (criticizing
early feminists for their indiscriminate challenge of shame).
44 STANFORDLAWREVIEW [Vol. 45:1

not noticed in the intensity of the preoccupationwith an oppressiveand re-


jecting present.
Some uses of words are not innocent. They are not mistakes. They are
not tools necessaryto remindus of importantdifferencesand values that are
occasionallyalso abused and misused. They are so naturalthat they mask
undesirablehabits of thought and facilitate unsupportedinferences. Their
costs are clear, and they have no redeemingbenefits. These usages, images,
and metaphorsshould be identifiedand exposed.116The public/privatedis-
tinction, and the vocabulary reflecting it, however, are not of this type.
Their ascription may be bad, but not their existence and use. The cure
should be to make ascriptionsmore carefully,in a way that will help us keep
our thoughts straight. "Explodingthe private,"or claiming that "the per-
sonal is the political" may be effective slogans that highlight a danger or
mobilize people, but they have dangerstoo. Perhaps,in some contexts, we
can make a choice about vocabularyand stop using public/privatetalk. It
may well be that, in some contexts (although I have yet to encounterone),
there are good strategic reasons for preferringa differentway of making
claims and arguments. But even if this is the case, the all-out fight against
the vocabularyof public and privateis unjustified,becausethe terminology
is uniquelysuited, preciselybecauseof its richnessand ambiguities,to make
and clarify many of feminism'smost fundamentalclaims.
One difficultyin discussingfeminist challengesis that the vantagepoint
of the challengesis not always clear. Philosophicalclaims about realityand
truth are not adequatelydistinguishedfrom political-strategicclaims about
the best means to achieve desirableresults in the present,imperfectworld.
Moreover,the distinctionbetween the two enterprisesis often criticizedby
those who arguethat scholarshipis to be enlistedin the cause of some polit-
ical vision. They arguefurtherthat those claimingneutralityare supporting
the status quo. The result is frustration: Whateverone says, no joinder is
created. When we rememberthe urgentsocial problemsthat call for resolu-
tion, it is more than just frustratingto be stuck in the realm of theoretical
polemics.
I expect that many feministswho endorsean externalcritiqueof the pub-
lic/private distinctionmay dismissthis articleas yet anothermisunderstand-
ing of their claims. At times, I have felt that maybethere was an important
116. A good example of success, though still awkward, is the unwillingness to accept the use of
"he" in writing. The awkwardness, however, is not too high a price to pay in the fight against the
naturalness of the identification of individuals of achievement as exclusively male. Similarly, the
portrayal of certain professions in gendered ways-e.g., doctors as males, nurses as females; profes-
sors as males, secretaries as females-restricts our freedom to imagine different worlds and orders.
The complex and frustrating nature of the problem can be illustrated by the fact that no solution
seems capable of resolving the problem completely. First, feminists sensitized readers to the effects
of using exclusively male language. Now, however, when female pronouns are used to describe
persons of status and achievement, this usage is sometimes attacked as misleading when there are
relatively few women in high status professions and occupations. We can agree that there are few
women in positions of power or prestige. We may even agree that it is desirable to change this
situation, or at least its appearance of inevitability, but it seems difficult to agree on the linguistic
recommendations that should follow.
November 1992] PUBLIC/PRIVATEDISTINCTION 45

argumentthat I somehowfailed to see. So I write this as an invitationto do


what must be done if we are not to talk foreverpast each other: to unpack
the claims, distinguishingbetween those which are empirical, social, and
causal, and those which relate to visions of ideal worlds. We must argue
about the truth or adequacyof the first, and the details and feasibilityof the
second. Finally, we must make claims about the relationshipsbetweenlan-
guage,conceptions,social reality,and social changeless elusive,more intelli-
gible, and more accessibleto reasonedjudgment.

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