[Editor’s Note: This is the fourth entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, and the third is available here.]
—N.W. Barber, Professor of Constitutional Law and Theory, Trinity College, Oxford University
The paper discusses the boundary between the public and the private, the points at which the state ends, and the private realm begins. Civil society is presented as the interface between the public and the private: the rules and, around those rules, the dispositions that define the relationships between the state and other social institutions – and which, in so doing, shape both the state and these private entities.
The paper provides an account of civil society that returns to its classical roots. Recent models of civil society have tended to focus on charities, pressure groups, and, sometimes, religions. However, earlier models, in particular the foundational account found in the work of Hegel, placed families and corporations at its heart. Whilst charities and pressure groups are elements of civil society, family and forms of economic relation are of central importance to its operation. The paper maps a crucial distinction in constitutional theory. This division – between the public realm of the state and law, on the one hand, and private realm of the economic and social, on the other – is sometimes presented in categorical terms: as closed systems that interact in limited ways. But even if a sharp divide can be drawn in the abstract, the division, between the public and the private, is less clear – and often less important – when applied to reality. It is argued that whilst the defining point of private bodies is almost always different from that of the state, their capacity to exercise authority and to have an existence outside of law renders them structurally similar in some respects to the state. It is this combination of difference of purpose combined with similarity of form that gives the appearance of tension between the public and private, suggesting, perhaps, that we must pick sides between the two.
The first part of the paper considers the relationship between the public and the private and their apparent tension. It may be the combination of the similarities and differences between the public and the private that explains the tension between these entities that has been discussed in the work of many constitutional theorists. States and private groups are often presented as antagonistic: either with private groups presented as a threat to the state, or the state presented as a threat to private groups. Some have concluded that this tension is not merely common and troubling, but is, at base, an ontological necessity, one which flows from the very nature of the two types of social group. For these writers, the public-private divide is, then, invariably a point of stress within society. The temptation is to pick a side, either to argue that the state should seek to subdue private groups or, in contrast, that private groups should seek to subdue the state. The remainder of the paper contends that this temptation should be resisted. Whilst the relationship between the public and the private is often under pressure, this pressure is not inescapable. When functioning well, states and private groups complement each other: the broad authority claims of the state – the claims of sovereignty – permit and justify the narrow reach of concern characteristic of private groups.
The second part of the paper seeks to explain why the state should see the private realm as a necessary and beneficial counterpart to the public. Although the defining purposes of private bodies are, almost invariably, different to that of the state, the success of private entities is a precondition for the success of the state. This section, again taking its lead from Hegel’s account of civil society, examines ‘invisible hand’ systems, social mechanisms that advance the common good – the defining objective of the state – even when individuals acting within these structures are unwilling or, equally importantly, are unable to act towards that common good directly. By processing the partial reasons of individuals, invisible hand systems may mitigate or even justify their partiality. It is an argument from the invisible hand that allows us to reconcile the restricted concern that is characteristic of the economic and social realms with the broader concern characteristic of the state.
The final part of the paper then considers the role of civil society, fashioned by the state and law, in the construction of these systems. Whilst some advocates of the ‘invisible hand’ saw the existence of these systems as a reason for the state to abstain from intervention, this section argues that that a proper understanding of the invisible hand shows precisely the opposite: the state is needed in order for these systems to function successfully. Not only does the state need private groups to function successfully, private groups also require the existence and support of the state. And this need, the need for states to create, support, and sometimes mitigate, these invisible hand systems justifies, in part, the broad claims of authority, sovereignty, that are characteristic of the state.
Suggested Citation: N.W. Barber, I-CONnect Symposium on “Constitutional Boundaries” — Civil Society, Int’l J. Const. L. Blog, Apr. 26, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-civil-society