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.