Post by Ted Sichelman
In a previous NPL post, I drew upon the work of Wesley Hohfeld to counter two major arguments often levied against the public-private law distinction. To do so, I implicitly assumed that a third major criticism—namely, that “the State” is a vague and ambiguous concept—was wanting. Here, I squarely address this assumption.
Before doing so, I briefly review my two major points in the previous post. First, using Hohfeldian theory, I argued that the public-private law distinction turns on the identity of the actors concerning a specific legal relation (e.g., a duty or legal power) rather than—as the skeptics claim—the object of the legal relation, such as a specific contract or piece of property. If the State is owed a duty, then the legal relation is typically a public one. When a legal obligation does not concern the State, it is typically private. To be certain, this categorization implies that the traditional sub-fields of “private law,” such as contract, torts, and real property, sometimes encompass public law relations. Yet, to the extent the State is a coherent concept, the approach by-and-large neatly divides public from private law for any given legal relation.
Second, who enforces the breach of a legal duty or interprets the scope of a legal relation is irrelevant in this Hohfeldian view to whether the relation sounds in public or private law. Although the State may enforce all duty relations, some of those relations concern solely private actors (private law) and others do not (public law). I noted that while realist and CLS critiques “may vitiate the notion that there is a ‘private’ sphere beyond the reach of law, that concept is quite different from that of private law.”
These claims assume “the State” is a coherent concept. A realist—indeed, a Hohfeldian-inspired realist—might counter that the State, like the corporation, is merely an aggregation of private individuals and, thus, a fiction. Yet, as Henry Smith has insightfully recognized, the Hohfeldian bundle of sticks can be aggregated and “modularized”—particularly, to reduce information costs in actual legal work—so that “things” such as “property” become coherent legal entities.
For instance, real property is defined quite well by the physical boundary encircling it because uses well inside the boundary tend not to be a concern to third parties and, conversely, uses well outside the boundary tend not to be a concern to the property owner. Of course, some uses are of concern, but such potentially conflicting uses tend to coalesce near the boundary—with trespass and nuisance quintessential uses of issue. In a more technical sense, Hohfeldian relations generally cluster well inside (or outside) the boundary, with limited action at the boundary, thus modularizing the property and transforming it into a coherent entity.
One can modularize the State (or other legal entities, such as corporations) in much the same fashion as real property. The State is an aggregation of agency relations among private individuals, whose day-to-day actions are clustered well behind the State’s boundary. Unlike real property, the State’s boundary is abstract and generally consists of interactions of its agents with individuals and other entities. What distinguishes the State from other entities is its grounding in agency relations. Scholars have properly characterized a corporation as essentially a nexus of contractual relations that are authorized by the State, modularized not only by the limited action at the corporation’s boundary, but also (as Smith has recognized) by the separation of ownership and control. Analogously, the State is essentially a nexus of agency relations whose principals are (at least in a democratic state) the legal actors subject to the State’s legal authority. Like the corporation, the democratic state achieves modularity through limited boundary action and by the separation of political control from political participation.
Whether this “social” (as opposed to legal) contract with the State is express or implied or purely fictive, it (on moral grounds) authorizes the State to impose duties on legal actors (in the absence of legal permission but subject to constitutional—and on some accounts moral—constraints), and ultimately enforce those duties through the use of force. Any legal actor subject (“liable” in Hohfeldian terms) to the State’s power is within, i.e., part of, the legal system governed by the State (and actors may, of course, be subject to multiple states). This relatively plenary power of the State across numerous actors—particularly its abilities to impose and enforce duties in the absence of legal permission—and its modularization via agency relations, distinguishes it from ordinary, “private” legal entities and persons.
Thus, the third contention of critics of the public-private law distinction can, like the first two, be suitably rebutted by a Hohfeldian—at least a sufficiently “modularized” Hohfeldian— approach. In a hyper-technical sense, the realist Hohfeldian’s view that everything boils down to individual legal actors and undifferentiated bundles of sticks—thereby vitiating the public-private law distinction—is facially plausible. However, much like how the particle soup of physics crystallizes into the atoms and molecules of chemistry, the public-private law distinction is alive and well—and quite coherent—in legal theory and practice.