Public/Private Distinction in Light of the History of Legal Thought: Contemporary Problems in the Context of Globalization

This paper examines the historical legal context of the public/private distinction, arguing that such a distinction — as an urgent issue in the global context — should be understood based on a substantial understanding of the public. As such, the paper utilizes investor-state dispute settlement(ISDS) as an example. In this context, the paper starts by explaining the reason why legal theory should consider public/private distinction as a pressing theoretical issue by proposing ISDS as a striking example. Then, this paper explores the development of the legal theory to articulate the meaning of the public in the context of Europe and America. And it demonstrates that this theoretical examination could provide fruitful insights into addressing contemporary problems such as globalization. Recently, many scholars propose the substantial understanding of the public beyond formalist view of the public/private distinction. The public needs to be considered as a sphere to embrace the state and the private. Finally, the research explains how one could apply this discourse to reformation of the ISDS system in the practical perspectives.