10/12/2023, 01:12 There is no such thing as a "Private Company"

There is no such thing as a "Private

Company"
Libertarians be damned

APEX
30 JUL 2021

8 2 Share

Once we cease operating under the delusion of equating "privacy" with individual
autonomy, one quickly understands that a company, by necessity, operates in the
Public Sphere. In a very real sense, there is no such thing as a "private" company.
And one rapidly realizes that, no, companies cannot simply do as they wish because
they are "private" institutions.

The Public vs Private Spheres

The realm of commerce is fundamentally different from the realm of domestic life.
While the public sphere is the "open" realm of shared norms, politics, employment,
etc, the private sphere is the intimate realm of the domestic and the Home. These
spheres are defined by both an orientation towards the broader society as well as by
geographic differences (aka they're in different places).

Here we have a substantive and meaningful notion of Private: there are zones,
physical regions or particular relationships and/or institutions, that cannot be
invaded because they are social Goods.

In Poe v Ullman, State enforcement of bans on the use of contraceptives were seen as
necessitating enforcement that would violate the sanctity of the marital bedroom.
The marital bedroom was understood as a Private zone that could not be invaded
without compromising a social Good more valuable than preventing contraceptive
usage. In Griswold v Connecticut, the Supreme Court upheld the right on the same
grounds: marriage and the zonal privacy of the home were cited as being such serious
moral goods that State intervention would harm them to an extent that makes such
intervention unacceptable.

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Would we allow the police to search the sacred precincts of marital bedrooms for telltale
signs of the use of contraceptives? The very idea is repulsive to the notions of privacy
surrounding the marriage relationship

...

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to
the degree of being sacred...[and] it is an association for as noble a purpose as any
involved in our prior decisions

It was only with Eisenstadt v Baird that the Supreme Court institutionalized the
utterly vague and meaningless voluntarist notion of Privacy in place of the
meaningful substantive notion that defined it previously (see above):

If the right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision to bear or beget a child.

*"Fundamentally affecting".

There is no answer to "what the f*ck is that supposed to mean", because it is a

meaningless concept. Every decision is a private matter: individuals ultimately
decide every matter in the recesses of their minds.

...

Furthermore, and perhaps most damning, although the Court claimed that the
right to privacy protects decisions “fundamentally affecting” individuals, it
nevertheless failed to distinguish between those fundamentally affective decisions
protected by privacy from those important decisions that are not, such as the
decision to engage in embezzlement, murder, or dog-fighting.

...

As Safranek summarizes well:

Consider the circularity of the Court's liberalist justification. Because the due process
right to liberty cannot protect every act of liberty, the Court has attempted to limit this
right to acts or decisions that are fundamental to self-definition. However, the Court

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must adduce some criteria to distinguish those acts or decisions fundamental to self-
definition from those that are not, because people dispute the acts they consider
fundamental to their personhood.

So, we must understand that something is "Private" not when it has to do with an
individual making a decision, but rather when it has to do with a particular Zone
that cannot be infringed upon without compromising some serious moral Good.

But only the State can infringe...right? That's the

Public/Private thing - State/Corporation...right?
No.

First, the State is just whatever institution is currently the Biggest Kid on the
Block:

The State is a formalized institution recognized by the people of a territory as being the
legitimate sovereign of that territory. Rather than wondering where laws are coming from,
the State exists to clarify the decrees of sovereignty: it exists to provide a place for people
to turn when it isn't clear what the rules are. You can call yourself whatever you want, but
if you are the final decision maker of the rules in a territory, you are functionally
equivalent to a State.

That a corporation cannot exist without being recognized by the State (perhaps
paying taxes, filing regulatory forms, etc.) is simply an extension of this. The
biggest kid on the block makes the rules, whether that kid is the United States
Congress or a future Tesla-ocracy on Mars.

Second, the Biggest Kid on the Block always decides by fiat what violence is okay
and what violence is not. If Jeff Bezos became a kind of neo-feudal warlord in Silicon
Valley as California's government collapses, he (or Amazon) would possess the
“monopoly on legitimate violence.”

Third, the claim that so-called "private" interactions are consensual while state
interactions are not is nonsense. This relies on two Facts:

1. Consensual contracts are entered into in a context that is not entirely

consensual:

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No matter how many times it is dealt with, the objection that libertarianism does insist
that people face the consequences of their own free choices pops up like a game of whack-
a-mole. Libertarianism represents a genuinely consensual politics because, while it is true
that contracts are considered binding once freely entered, only consensual contracts are
permitted.

But this is just the same old question-begging blindness to metaphysical baggage all over
again. Contracts and other choices take place in a context, and the context is not itself a
consensually entered contract[1]. As a simple example, who ‘owns’ what, and what
‘ownership’ does and does not entail in specific situations, is the tip of the iceberg of the
non-consensual context in which every contract is entered, and in the shadow of which it
is bargained.

If you happen to find a given nonconsensual context pleasing for ideological or personal
reasons it is more likely to be invisible to you. But even then it isn’t something you created
by giving consent.

2. If one has no choice/has no alternatives, one's choice cannot be understood as

truly consensual.

At BEST, this justification is highly bounded. And considering that everyone from
payment processors to app stores to server providers seem to engage in concerted
actions to shut down alternatives that would provide that diversity is just another
nail in the coffin for the "exit" nonsense. And, in that sense, the usage of many
Non-State institutions does not represent genuine consent (it is rather that people
do not have the diverse array of choices the fabled Free Market is supposed to
provide).

Any ideology built around "Exit" would need an economic system significantly
distinct from what we call "capitalism" today.

So, if we simply take "freedom of association" to be a good, we can't even say that
the "capitalism" we live under does a good job of providing this. Yes, in any
system you will be limited by material realities and necessities to some degree.
But it is clear that this system we live under does far more to limit freedom of
association than it claims. Instead, it is a deeply coercive system.

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Now, this is not an argument of "the Private sector is barely consensual so who
cares, let the State run amok!" The State HAS limits. But it is important to
understand that the State has a duty to limit other institutions as well from
infringing on the rights of individuals. We must understand that there is no such
thing as a neutral institution, and that therefore the most powerful institution is
always endorsing and enforcing a particular vision of the Good. The question
becomes: what is that vision/what is the standard for delineating between proper
and improper action? Is it simply the State saying “let the powerful do what they
want” or is there a more substantive notion that must be at play? Truly, the State
has a DUTY to govern institutions in the public sphere (including corporations) so
that they do not compromise the serious moral goods present in the Private sphere.

Commerce ain't Cozy: A shift in orientation

As I mentioned above, the Private and Public spheres are distinguished by a
difference in "orientation" towards broader society. The Private sphere of intimate
life and domesticity is "closed" to a significant extent. We intuitively understand
this: having sex in public is typically frowned upon (you have brought a Private
activity into the Public sphere). On the other hand, the Public sphere of politics,
commerce, and social situations is "open" in a meaningful way: we all participate in
a set of social norms that are, at the very least, intersubjective and sit outside of the
desires of any one individual.

Any institution operating in the Public Sphere, whether that is the State, a
corporation, or a charity, is subject to the social norms and rules. It is governed by
society as a whole. On the other hand, the Private Sphere is the sphere of individual
subjectivity and this is an important Good that must be protected. If an individual
wants you off of their personal property, a simple "I don't like you, get out" is
sufficient. People need a Zone to express themselves without judgment or ridicule, as
subjectivity is an important Good that must be respected. On the other hand, if a
business wants you off of its property, it must appeal to some greater moral purpose
than just "we don't like you." Even if it is "your" business, you are operating in the
Public sphere. You have relinquished your right to govern based on personal
sentiment once you enter the marketplace. That doesn't mean the customer always
wins. It just means you must abide by a morality more substantive than your
personal subjective desires.

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The Antinomies of Autonomy (or, Intractable Conflicts of

Self-Expressing Individuals)
Insofar as Freedom of Association may be defended, it cannot be defended on the
grounds of autonomy:

What happens when the self-expression of individual A is mutually incompatible

with the self-expression of individual B? How do we decide who gets to express
themselves? Certainly we need a standard outside of self-expression to do so!

Or what about "harm"?:

Tricky thing, "harm".

Who decides what is "harmful" and what isn't? Who decides whose harm matters
more?

Liberalism hides its imposition of morality behind vague, emotionally potent

rhetoric. There is no such thing as "freedom". No such thing as "harm". Elites
make it up.

Some decisions are conflicts of interests: inevitably one party must be harmed - you
must have some standard outside of Harm to justify why person A's prospective
Harm is less serious than person B's. Of course, without such an explicit standard
(since libertarians seem to think this is possible), it defaults to Might Makes Right:
whichever party/person/institution possesses greater Power in the situation is able
to avoid harm and inflict it on the other party. I do not believe that 2500 years of
philosophy bringing us full-circle to Might Makes Right is a very compelling
proposition (especially considering its supporters are some of the loudest
proponents of "freedom").

Recap
So, we understand that corporations are, by necessity, public institutions. Commerce
is necessarily a Public activity, taking place in the Public sphere. (May the Lord have
mercy on any family that practices commerce amongst its members). In fact, the blending
of Public and Private, the ongoing commodification of everything at the hands of
Autonomy-worship and Capital, is a profound evil and one that must be opposed. Of
course, it is the very people who most viciously defend "freedom" that are the ones

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plunging us head-first into a world of Might Makes Right wherein nothing escapes
the world of politics and commerce. Is it at all surprising that the Left, those devote
Autonomy-worshippers, are as hypercapitalistic as the neoliberals they claim to so
thoroughly despise? (Hint: it shouldn't be)

Once we understand that companies are not properly Private but are actually Public,
we can begin to actually discuss how the Public sphere is one governed by the
society's morality. We must continue to understand that economics is embedded in
politics which is embedded in ethics. There is no escaping the question of Good in
society. "Autonomy"/"Freedom"/"Liberty"/"Self-responsibility" doesn't cut it.
"Harm" doesn't cut it. "Consent" doesn't cut it. It is time for a substantive moral
outlook once again. Do not be confused by the Fabrication of "Freedom": it is a
recent phenomenon, and certainly a surmountable one. Not so long ago, we had our
heads screwed on a little tighter. It's time to get our sanity back.

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2 Comments

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Scott Aug 1, 2021 Liked by Apex

I've heard it said that Locke's defense of private property in chapter 5 of the second
treatise is actually a defense of privacy. The whole notion on mixing labor with x giving
natural rights to x has been endlessly criticized, but I think the reason the idea sticks is
because what it's really arguing for is something we all clearly want, we just don't know
how else to appeal for that "good" outside the language of classical notions of rights and
consent.
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Katie Fryslie Huff Oct 6, 2021

When you write LHM on the family that practices commerce on it's members, I noted that
this is something I think about a lot. The importance of choosing unconditional v

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conditional love is not something that people naturally understand, imo, but depends
highly on the family/system they experienced growing up. Then again, when I say
naturally understand I don't mean instinctual. Seeking unconditional love is instinctual.
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