The “Public”, the ‘Private’, and the Legal Norm of Equality

Should courts seek to apply the concept of equality—as developed in public law litigation—in controversies between private parties? In this review article I argue that the distinction between the concept of “private” and “public” in current society is essentially based on the way equality is treated in each of these fields of social activity. This is because things in our society that are regarded as “public” are those that belong, equally, to everyone, while the things that are “private”—do not. Accordingly, the public field is dominated by the norm of political equality, while the private law field is dominated by the absence of a strict requirement for equal distribution of economic goods. So far, the phenomenon of courts applying the norm of equality in the private law field referred, largely, to cases in which courts enforced some fundamental requirements of political equality, such as the norm against racial discrimination, in private law litigation. Thus, this phenomenon does not raise serious questions of institutional legitimacy in current liberal democracy.