Privatization as Publicization
Privatized Bodies in Public Law
Eyal Peleg
Abstract
Since the 1980s, the State of Israel began undergoing what policy-makers in the western world call 'privatization', including the transformation of state property into private property as well as the transfer of operations in infrastructure and services to private ownership or operators. The new millennium brought with it additional support for the privatization trend. Israel's governments no longer wish to limit themselves to the privatization of "commercial
public products" (utilities), such as telecommunication or electricity services, but would also like to privatize government services such as welfare, healthcare, education and incarceration, something that only a few people thought possible a few years ago.
Public discourse on privatization in general, and academic discourse in particular, is still lacking. Although economists have already made significant contributions to literature, other disciplines, including legal theory, are not sufficiently present in discussions on privatization. The debate over privatization policies among public law scholars is still in its infancy. This book is designed to help filling this void in public law discourse, and contribute to an
understanding of privatization as an issue at the core of public law.
The crux of the book centers on the question: "What will happen after privatization?" It does not intend to negate privatization but rather urges to develop it in a way that will realize its goal as a process designed to improve the public good. The book outlines the legal regime that should apply to privatized bodies.
Chapter One describes the process of privatization from a global, general perspective as well as in the Israeli context. After introducing the current discourse on privatization, which focuses on questions of efficiency and adopts the neo-liberal ideology, it sheds light on the less celebrated aspects of privatization, including instances of disappointing privatizations that inflicted suffering and infringed upon the rights of both service receivers and the general public. The chapter concludes by describing the fears and dangers embodied in privatization faced by the individual and the state which stem, inter alia, from the traditional distinction between "public" and "private".
Chapter Two discusses the justifications for an analysis of privatization as publicization, i.e. poses arguments supporting the application of public law principles on privatized bodies that carry out government-public activity. It sheds light on the dangers of a private-privatized government. As a result, the chapter introduces the privatization as publicization approach, as a means to protect Israel's constitutional democracy.
Chapter Three continues to discuss the justifications to the privatization as publicization approach. It includes an analysis of the Israeli social contract that revolves, inter alia, around the preservation of human rights and the identity of Israel as a welfare state. According to this argument, privatization without publicization is a breach of Israel's social contract, which is the source of the duty to ensure minimal existence with dignity to everyone.
Chapter Four elaborates on the application of the privatization as publicization approach. For this purpose, it calls for developing the public law applied to privatized bodies as a distinct area of public law updated for a reality of privatization. It focuses on the introduction of legal tools that will be used to instill the publicization approach. The chapter begins by discussing the possibilities embodied in legislation – current legislation as well as model laws for privatization. Following that, it analyzes the privatization contract as a publicization tool, as well as the case law on corporations of public nature. Finally, the chapter discusses the scope of public law to be applied to privatized bodies, that is the specific publicization rules these bodies will be subjected to.
Privatized Bodies in Public Law
Eyal Peleg
Abstract
Since the 1980s, the State of Israel began undergoing what policy-makers in the western world call 'privatization', including the transformation of state property into private property as well as the transfer of operations in infrastructure and services to private ownership or operators. The new millennium brought with it additional support for the privatization trend. Israel's governments no longer wish to limit themselves to the privatization of "commercial
public products" (utilities), such as telecommunication or electricity services, but would also like to privatize government services such as welfare, healthcare, education and incarceration, something that only a few people thought possible a few years ago.
Public discourse on privatization in general, and academic discourse in particular, is still lacking. Although economists have already made significant contributions to literature, other disciplines, including legal theory, are not sufficiently present in discussions on privatization. The debate over privatization policies among public law scholars is still in its infancy. This book is designed to help filling this void in public law discourse, and contribute to an
understanding of privatization as an issue at the core of public law.
The crux of the book centers on the question: "What will happen after privatization?" It does not intend to negate privatization but rather urges to develop it in a way that will realize its goal as a process designed to improve the public good. The book outlines the legal regime that should apply to privatized bodies.
Chapter One describes the process of privatization from a global, general perspective as well as in the Israeli context. After introducing the current discourse on privatization, which focuses on questions of efficiency and adopts the neo-liberal ideology, it sheds light on the less celebrated aspects of privatization, including instances of disappointing privatizations that inflicted suffering and infringed upon the rights of both service receivers and the general public. The chapter concludes by describing the fears and dangers embodied in privatization faced by the individual and the state which stem, inter alia, from the traditional distinction between "public" and "private".
Chapter Two discusses the justifications for an analysis of privatization as publicization, i.e. poses arguments supporting the application of public law principles on privatized bodies that carry out government-public activity. It sheds light on the dangers of a private-privatized government. As a result, the chapter introduces the privatization as publicization approach, as a means to protect Israel's constitutional democracy.
Chapter Three continues to discuss the justifications to the privatization as publicization approach. It includes an analysis of the Israeli social contract that revolves, inter alia, around the preservation of human rights and the identity of Israel as a welfare state. According to this argument, privatization without publicization is a breach of Israel's social contract, which is the source of the duty to ensure minimal existence with dignity to everyone.
Chapter Four elaborates on the application of the privatization as publicization approach. For this purpose, it calls for developing the public law applied to privatized bodies as a distinct area of public law updated for a reality of privatization. It focuses on the introduction of legal tools that will be used to instill the publicization approach. The chapter begins by discussing the possibilities embodied in legislation – current legislation as well as model laws for privatization. Following that, it analyzes the privatization contract as a publicization tool, as well as the case law on corporations of public nature. Finally, the chapter discusses the scope of public law to be applied to privatized bodies, that is the specific publicization rules these bodies will be subjected to.