Introduction
Sustainability concerns such as climate change, biodiversity loss, and inequality are the defining issues of our time (Dyer 2024; Hickel 2020; Steffen et al. 2015). The relationship between these issues and human activities is, to a notable extent, influenced by legal ideas on the rights, freedoms, and duties of different parties such as individuals, firms, and states. These ideas delineate who is allowed to do what in relation to uses of land, CO2 emissions, human rights violations, and other sustainability issues. They are central to whether we can(not) address them effectively.
Contemporary legal ideas are typically embedded in a liberal democratic discourse that divides human activities into separate private and public realms. The nature of these realms, and of the public-private boundary (‘divide’) between them, is uncertain and contested territory. Important for sustainability is that numerous authors argue that expanding the scope of one or the other of these realms can help address sustainability issues. Some argue, for example, that an expansion in public authority can grant states more power to implement laws to reduce harmful activities by private actors. Others propose, conversely, that private actors should be empowered with better information and property rights so they can make the right, rational, and efficient decisions to minimise sustainability issues.
An unfortunate feature of these discussions is not only their polarisation but also that the terms ‘private’ and ‘public’ are often used as though their meaning is self-evident; they are typically undefined or defined superficially. The term ‘sustainability’ suffers from a similar lack of clarity. One result is that the theoretical foundation of these debates is ambiguous, making it unclear whether, how, and to what extent the proposed solutions will be able to promote sustainability.
It is with this ambiguity in mind that this blog reflects on the origin, meaning, and relationship of these terms. It first discusses what is sustainability, secondly examines what is the public-private divide, and thirdly reflects on their relationship. It ultimately concludes that the division of human activities into public and private is contrary to the effective attainment of sustainability.
What is sustainability?
The term sustainability has a long history in Dutch, German, and French and is commonly used to indicate continuity, durability, and resilience (Du Pisani 2006). It is defined in various ways in various fields such as law, environmental economics, and earth systems science. Fortunately, we can reduce the complexity of these definitions by recognising that: (1) sustainability is a recent addition to the English language; and (2) its English use has become central to international policy discourse on sustainability.
Regarding (1), we can identify that the word sustainability emerged in the 1960s after activities by the environmental movement (Du Pisani 2006). Importantly, this movement stressed the oneness, relationality, and interdependence between people, their ideas, and their surroundings; it recognised that environmental issues are interwoven with, not separate from, social and environmental issues such as racism and inequality (Farley and Smith 2020). This distinguished it from contemporary conservationism which focused on preserving and insulating nature, for example by creating natural parks (Du Pisani 2006).
Regarding (2), it is significant that sustainability was popularised by several influential reports: Limits to growth (Club of Rome, 1972), A blueprint for survival (The Ecologist, 1972), and Our common future (United Nations, 1987). It was through these reports that sustainability became a permanent fixture of international policy discussions. These reports challenged the dominant developmentalist view at the time that we could have infinite economic growth and technological progress on a finite planet. They did not, however, oppose to growth as such but contended that development should be pursued within the limits and capability of society and the environment. This explains why sustainability and sustainable development are used as twin terms in these reports. It also highlights that sustainability has a developmentalist orientation.
Also relevant is that these reports relied on systems thinking; they all conceptualise the economy, society, and environment as three separate but overlapping or interacting systems. This tripartite systems view is evident in many areas of sustainability policy, for example in the UN’s three pillars model of sustainable development (Farley and Smith 2020), the Triple P approach (People, Planet, Profit) for corporate sustainability efforts, and the ESG (environment, society, governance) framework for sustainable investment. Systems thinking also underpins strong and weak economic theories of sustainable development and influences legal policy in numerous areas such as corporate sustainability due diligence, reporting, and environmental regulation.
Important for understanding sustainability is that there is a contradiction between the scientific methods of systems thinking and the holistic worldview that originally inspired the environmental movement and emergence of this term. The problem is that systems thinking, although it aims to examine a ‘whole’ system, does so by broadly dividing its internal structure and dynamics into separate components with particular boundaries, connections, and feedback loops. It is hard to see how this methodology of separation can provide an effective foundation for holistic thinking about sustainability. An analogy would be to imagine that Humpty Dumpty, who broke from a fall, could be put together again by making him fall once more. It follows that we need to decouple the meaning of sustainability from the systems thinking with which it is often associated.
This gives rise to the following definition of sustainability: a holistic approach to development that focuses on the indefinite continuity of people, their ideas, and their surroundings (generally, see Van Aartsen 2024). A benefit of this definition is that allows for non-systems-based thinking and recognises that people can have diverse ideas on what continuity can or should look like. Moreover, it can be adapted and refined to suit the needs of particular situations.
What is the public-private divide?
The public-private divide is a template, derived from liberalism, that classifies human activities into separate public and private realms. To study this divide in more detail we can start with the work of Thomas Hobbes.
Hobbes’ Leviathan (1651) was the first influential Western explanation for the origin of states that was not grounded in biblical allegories such as the Garden of Eden and Fall of Adam (Russell 1947). Instead, he imagined that people once lived as free but solitary individuals in a ‘state of nature’, and that their lives were poor, nasty, brutish, and short (Hobbes 1996). He then argued that people came together and signed a ‘social contract’ to end the “war of all against all” that existed in the state of nature (Russell 1947). This contract limited the worst human tendencies by curtailing the ‘natural’ freedoms that individuals once had in the state of nature. It also empowered a social construct, the state, to enforce its provisions, protect individuals, and enable their civilisation.
The state of nature and social contract allegory is foundational to constitutional protections in liberal democratic societies. The idea is that the natural freedoms of individuals should only be curtailed to a limited extent, and that their other natural (now human) rights should be protected by constitution and maximally enabled. This leads to a minimum necessary degree of state power and a maximum degree of individual freedom. Numerous liberal authors (ranging from Rousseau, Rawls, Nozick, Fukuyama, etc.) have offered alternative views on the state of nature and social contract as well as the relationship between individuals and the state.
More relevant for us than the content of these views is that they share a methodological premise: individuals are analytically prior to society/states. It follows that individuals are, in principle, able to lead a full existence in the absence of any type of society/state. This pre-social individualism is central to the scientific foundation of both economics and law, despite rarely being discussed or recognised in either discipline.
It is strange from a 21st century perspective to think of people as pre-social individuals. It seems obvious that people are also constituted by their ideas and surroundings (education, epigenetics, advertising, pollution, etc.) and that they do not exist as pristine, self-contained atoms in a social and environmental setting. So how did it become plausible to conceptualise people in this way?
To see how this happened it helps to first consider the theological roots of liberalism. These reveal that the state of nature was originally a Christian term that was used to describe the opaque time between the Fall of Adam and the later time of Cain and Moses (Tierney 2001). Second, it helps to identify that liberal individualism assumes that people are equal and to discuss the historical origins of this egalitarian principle.
Ancient Greek and Roman cosmology posited that there is a ‘great chain of being’ which arranges people and their surroundings into a certain hierarchical order (Siedentop 2014). This order made people superior to animals and made it natural for them to have different, unequal roles in society. One feature of this inegalitarian cosmology is that ideas on what people ‘should’ do was strongly informed by their social role. A King should act like a good King, a woman like a good woman, and a slave like a good slave. It was these unequal roles, rather than a universal notion of shared humanity, that determined how people should behave.
This inegalitarian cosmology may be contrasted with Christian ideas that ultimately supplanted it and became embedded in liberalism (and then economics and law (Van Aartsen 2024)). According to these ideas, people are equal because they all have a soul whose worthiness (for doing good or evil) is judged according to the universal standard of God’s will. Crucially, this judgment is enabled by the idea that individual souls have a free will that, because it is independent from any external influence, has the capacity to decide between courses of action that are good or evil (in the eyes of God). This idea of free will is foundational e.g. to intentionality requirements in criminal law and the economic viewpoint that people are able to make rationally informed, free decisions.
Returning to pre-social individualism, it is this vision of humankind – as possessing a soul and free will to make autonomous decisions – that makes it possible to model people as pristine and complete atoms, distinct from society and their surroundings. This vision is particular to Anglo-European theology and culture and does not offer a universal lens for analysing human activities.
Returning to the public-private divide, we are ready to define the relevant terms. A private actor is a pre-social individual with a soul who makes decisions based on their free will. A public actor is a social construct that is empowered, within the limits of the social contract, to promote the general interests of private individuals. The position of the divide between them depends on one’s views about the balance between state power, individual freedoms, and the general interests of these individuals.
Sustainability and the public-private divide
We saw that the cosmology of sustainability is grounded in a sense of oneness, relationality, and interdependence between people, their ideas, and their surroundings. We also identified that the public-private divide introduces a fiction of separation between individuals, their ideas, and their surroundings. These separations are corollaries to the idea that individuals (should) have free will without external influence and that they exist, at least in part, as pre-social atoms that are not mutually constituted by society or the environment.
The above findings reveal a fundamental incompatibility between sustainability and the public-private divide. The effective realisation of sustainability requires us to buttress the relationships and interdependencies that we have towards each other and our surroundings. This is an inherent threat to the public-private divide which aims to maximally free people from external influence and to minimise their relationships and interdependencies. It follows that the division of human activities into public and private is contrary to the effective attainment of sustainability, and that we cannot make our societies sustainable if we continue to rely on this divide as the basis for our legal systems.
Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
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