Introduction

The division between ‘public’ and ‘private’ is fundamental to criminal law and a focus of criminal justice policy debate. This chapter argues that the division should be understood as an ongoing social process to which criminal justice contributes, rather than as something demarking defined spaces or static roles. Criminal justice plays a critical role in this process, a process of drawing proper limits to the power of the state, including the state's ability to intrude into the personal sphere. It will be argued that maintaining a division between public and private should be seen as an intrinsically valuable project, one that cannot be pursued without affording considerable power to criminal justice agencies and placing considerable constraints upon them.

The social process of creating, drawing and redrawing the divide between public and private is nothing less than the ongoing project of maintaining the rights of the individual and limiting the power of public actors. It is, more precisely, a project of excluding arbitrary interests and preferences from public life and, conversely, limiting certain kinds of public intervention into conscience, preference or personality. This allows two different groups of values to exist. Without such limitations and exclusions, there could be no personal autonomy: the state would dictate the standards of legitimate behaviour in every aspect of our lives, leaving no room for individual conceptions of a good life (Mill, 2008). Equally, without identifying standards and practices proper to public life, there could be no impartial administration of justice because individuals would be judged by their character, rather than by general standards appropriate to those adopting public roles (Fuller, 1969).

This complex relationship between values and the public–private divide has consequences for the regulation of, and the division of labour between, public and private actors in the delivery of criminal justice. Criminal justice actors must be sufficiently powerful to constrain the state itself from undue interference in our lives, but also sufficiently accountable to prevent such power becoming oppressive. Not only is it uncertain whether private actors are sufficiently accountable for this role, but the authority of criminal justice agencies flows from the exclusion of private interest, an exclusion which is difficult or impossible for entities owing their existence to private interest (Loader, 2006).