Vol. 13 No. 12 (December 2003)
NEW PERSPECTIVES ON THE PUBLIC-PRIVATE DIVIDE edited
by the Law Commission of Canada. Vancouver: UBC Press, 2003. xviii, 191pp.,
index. Cloth $85.00. ISBN:
0-7748-1042-4. Paper (available January 2004) $27.95. ISBN: 0-7748-1043-2.
Reviewed by Christina-Anne Boyle, Collection Development
Librarian, Courts Administration Service, Ottawa, Ontario, Canada.
This collection of essays is the consequence of the 2001
Legal Dimensions Initiative, an annual research competition sponsored by
the Canadian Association of Law Teachers, the Canadian Law and Society Association,
the Canadian Council of Law Deans, and the Law Commission of Canada. The
latter is an independent federal agency that acts as an advisory body to
Parliament on legal reform, and serves as editor of this work.
The specific aim of this publication, as outlined by Nathalie
Des Rosiers, the President of the Law Commission of Canada, is to inspire
questions about the law and its function in our society, by galvanizing
the authors (and readers) to delve into specific issues using the construct
of the public-private divide as their frame of reference. The idea is not
to further define the public-private divide itself, but to examine what
it can reveal as well as what it conceals. Her introductory essay is extensive,
providing both a context in which to better understand the contributions,
and a review of the essays which gives the work cohesion. In addition, it
contains a conclusion, which perhaps would have been better placed at the
end of the book, but which the reader can return to after digesting the
six diverse chapters.
In the first essay, "There's Only One Worker: Toward the
Legal Integration of Paid Employment and Unpaid Caregiving," Lisa Philipps
examines the job-family conflict in the Canadian context from a feminist
political economy perspective. She uses a broad definition of caregiving
in her argument, encompassing more than the care of children and other dependents
in the private realm. Her understanding covers caring for the physical and
emotional well-being of all family members, including those who go out to
perform paid work. Her premise is that current economic structures have
essentially set unpaid caregiving within the private realm, marginalizing
those involved in these activities. She envisions a new economic model in
which unpaid work in the private realm is given recognition equal to that
of the paid work in the public realm, since she argues that public work
and current work productivity levels are supported by, and would not be
possible without, this private nurturing.
The author focuses on critical legal issues in a number
of areas that would require substantial reform for her vision to work, including
employment standards and labour, business and corporate law, income tax
law, and family law. The end-result of the legal reforms discussed would
be a situation where there are no separate categories of breadwinners and
caregivers, only a unified worker who crosses the divide between the public
and the private realms, engaging in and recognized for both paid and unpaid
activities, which are "mutually interdependent" rather than "fundamentally
conflicted" (p. 31). The author
makes a strong case for the need to recognize unpaid work performed in the
private realm in law and practice, integrate it into our economic value
structure, and facilitate female mobility between the public and private
spheres.
The second contribution, "Private Needs and Public Space:
Politics, Poverty, and Anti-Panhandling By-Laws in Canadian Cities" by Damian
Collins and Nicholas Blomley, examines the recent rise in anti-panhandling
regulations in Canadian cities within the greater context of a North American
movement to purify public spaces. Being geographers, their focus is the
interaction of geography and law. Their stated aim in this essay is to spatialize
anti-panhandling by-laws.
They are intrigued that the individual transaction of begging
for money is politicized and regulated because it occurs in a space that
is public. Their argument focuses specifically on Canadian downtown spaces,
highlighting as dynamics in this contemporary situation the great financial
investment in urban spaces, growing economic disparities between the inhabitants
of city cores, and moral apprehensions about how the homeless spend this
money. There is fear that allowing certain marginalized people to pursue
their lives in our streets will promote socio-economic decline, and prevent
the majority from being able to engage in legitimate public activities.
The authors suggest that this regulatory movement is more than a further
privatizing of public space. The private actions of the panhandlers have
become enmeshed in public values regarding the appropriate use of public
space. Examining the interaction of law within society as well as the space
it occupies is key to a greater comprehension of the issue.
The third chapter is "Private Life: Biotechnology and the
Public-Private Divide," in which author Nathan Brett examines the emerging
issue of patenting of biological entities. He illustrates much of his argument
with the high-profile example of the "Harvard mouse" case, where a request
for a patent in Canada for the genetically-altered Harvard Onco mouse was
denied and appealed up to the Supreme Court. It should be noted that the
judge who heard the Harvard mouse case at the Federal Court of Canada (Trial
Division) level was Nadon, J., not Justice "Nandon" as he is incorrectly
referred to in note 35 (p.91).
To sum up Brett's lengthy argument, privatization is not
a bad thing necessarily, except where it removes scarce resources from the
public domain without yielding public benefit, as it closes off access to
resources, gives monopoly beyond what is reasonable and necessary, or impedes
the future progress of others. He is not impartial about the granting of
biological patents, displaying Lockean philosophical leanings which lead
him to oppose some of the current activities of biotechnology firms. His
position is that inventions are patentable, but neither living creatures
nor naturally-occurring genes are inventions. He likens the granting of
a patent for a whole life form to allowing a patent for all rivers, just
because the claimant has found one particular use for one river. He expresses
similar views on the patenting of specific human genes, questioning the
need to patent the gene rather than the process, just because someone has
been able to isolate and replicate it. The author raises some very interesting
issues, and argues that there is a need to review the push to privatize
public intellectual property and scientific discoveries at the urging of
a multi-billion dollar corporate industry. He is particularly concerned
that the patent rights being granted to private interests are too broad,
limiting competition and the ability of others to pursue research in the
public interest.
The fourth contribution is Darin Barney's "Invasions
of Publicity: Digital Networks and the Privatization of the Public Sphere."
Lately much attention has been paid to the digital threat to privacy. In
this essay, the author focuses instead on what impact digital information
and communication networks are having on the public sphere. The concept
of publicity is reviewed, using Hannah Arendt's view of the ancient Greek
polis and Jürgen Habermas's bourgeois public sphere of Europe during
the Age of Enlightenment. These two models are used to provide a basis for
understanding the desirable qualities required in digital technology for
mediation in the public sphere.
Essentially they underscore the public sphere as a place
for active engagement in politics or debate in the public interest, a forum
separate from private economic and commercial interests and the demands
of everyday life. Habermas's model expands on this to include the concept
that the political debate in the public sphere acts to legitimate public
authority. Thus, to be successful, media "must resist devolution into a
means for managing commercial consumption, social diversion, and superficial
consent" (p.108). Digital communications media are still relatively new
technologies, yet there has been much hype about their interactive and democratic
possibilities. The author reviews known patterns of Internet use, but finds
that in fact most people are not using it for political engagement, and
that it so far has not enabled the politicization of a new group of citizenry.
Their use is overwhelmingly private, social and economic, all the qualities
deemed undesirable for media in the public sphere.
Chapter Five is Stepan Wood's "Green Revolution or Greenwash?
Voluntary Environmental Standards, Public Law, and Private Authority in
Canada." This contribution looks at the role of voluntary Environmental
Management System (EMS) initiatives and standards within the public-private
divide in Canadian law and politics. In his opinion, though they have received
little attention to date, they have "significant and largely unexplored
implications for environmental quality, public health, and the definition
of 'public' and 'private' in Canadian law and politics" (p.123).
The author is able to show that EMS initiatives and standards
belie the public-private categorization. Most associate EMS with the private
sector when in fact Canadian public authorities-including public servants
and members of the legislative and judicial branches of government-are quite
involved in their development. Engagement by public authorities includes
encouraging initiatives, doing research on standards and disseminating this
information, providing financial incentives for voluntary implementation,
implementing EMS themselves to set an example, and relaxing regulations
or lifting environmental penalties for those who voluntarily employ an EMS.
The broad range of public and private authorities collectively involved
in EMS standards, including "standardization bodies, EMS auditors and certifiers,
consultants, corporate managers, customers, regulatory agencies, legislatures,
government inspectors, courts" (p.138) underlines the need for a wider alternative
conception, acknowledging the co-mingling of numerous public and private
stakeholders in the environmental sphere.
In the final contribution to this collection, Christian
Brunelle examines "The Emergence of Parallel Identity-Based Associations
in Collective Bargaining Relations." The essay looks at the import
of the creation of separate associations outside certified unions to defend
workers rights, with specific reference to recent events in the province
of Québec. To briefly summarize the account given here, in 1996,
unions and public management agreed to assist the provincial government
in reforming public spending. Many unions had "orphan clauses"
drawn up within their collective agreements, ensuring that the greater part
of the burden would be borne by younger workers and not alienate the core
union supporters who are generally older workers. The concessions took many
forms in different bargaining groups, but could include frozen wages, the
addition of an extra rung on the lower end of the salary scale, and the
abolition of an experience credit that was formerly recognized in lieu of
education to obtain salary increases. In response, groups of younger workers
formed a number of similar associations to combat these measures negotiated
and enshrined in private collective agreements on their behalf. It should
be noted that the author has retained and not provided translations for
the original names of many of the associations and laws mentioned. This
may unfortunately cause a diminished understanding for those who do not
read French.
What the author underlines as particularly interesting
about these associations is that they have not adhered to traditional internal
means of showing their discontent or trying to change the collective agenda,
lobbying within their unions to have their viewpoints considered amongst
their fellows. Instead, they have set up public Internet sites, appeared
before legislative committees, and launched official actions against the
age-discriminatory clauses in their collective agreements with the provincial
human rights commission. The author argues that a shift in the position
of collective bargaining relations within the public-private divide is occurring
as these associations publicly challenge the nature of private contracts.
He advocates the need for unions to come to terms with the social and demographic
changes in their membership, to adjust their thinking to become more inclusive
of their diverse elements and the rights of the individual, and "define
themselves more as public forums than as private organizations" (p.168)
to be prepared to counter the threat to their position that these parallel
identity-based associations represent.
In conclusion, all of the chapters are well-written and
include bibliographies. In my opinion, the Law Commission of Canada has
attained its objective, assembling a very thought-provoking multidisciplinary
text. I recommend it to political scientists, economists and sociologists
in addition to the legal thinkers and reformers it should naturally attract.
CASE REFERENCE:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. CANADA (Commissioner of Patents) 2002 SCC 76 rev'g [2000] 4 F.C. 528 rev'g [1998] 3 F.C. 510.
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Copyright 2003 by the author, Christina-Anne Boyle.