Roncarelli v. Duplessis is remembered for the way it imposed limits on public power. But in imposing these limits, it relied heavily on public/private distinctions inherited from nineteenth-century classical liberalism. The judges invoked public/private distinctions to identify the damage Roncarelli suffered, to consider the purposes for which discretion could be validly exercised, and to determine whether Duplessis had exceeded his authority.
The author argues that this proliferation of public/private concepts echoes the general indeterminacy of these ideas in liberal legal thought. Although the state/civil society distinction is central to liberal notions of public and private, it coexists with parallel thought structures, such as market/family, civilization/state, and, in Canada, dominion/province. These multiple meanings of the public and the private are mutually reinforcing. They also underwrite myths about the natural, consensual, and neutral nature of the private sphere, making it more difficult to think about controlling the exercise of private power. Although ideas about the public and the private have changed since the late nineteenth century (and since 1959), they display a remarkable persistence. Public/private distinctions can be observed at work in contemporary administrative law, in debates about which bodies are subject to judicial review, and which kinds of decisions are subject to judicial review on grounds of procedural fairness.