The Morality of Privatization
My project rests on the premise that the desirability of legal institutions and procedures is not merely instrumental and does not hinge merely on the prospects that these institutions are likely to result in valuable ends. Instead, various legal institutions and legal procedures matter as such; they have intrinsic value. I defended this claim in my book Why Law Matters.
I intend to apply this observation to examine the relationship between the private and the public sphere. It is traditionally believed that the division of labour in providing goods between the state and the individual rests on instrumental considerations such as which entity can provide these goods more efficiently. Hence, in principle, all goods can be provided by either private or public entities and the choice between these two rests merely on the question of who is most likely to provide the goods more efficiently. This influential view does not account for our intuitions. Most people believe that punishment, legislation or decisions to go to war are all decisions that cannot be delegated to private individuals, even if those individuals are particularly smart or capable.
The primary claim of the manuscript I am currently writing defends this intuition. I argue that there are some goods that can be provided only by the state. Some governmental decisions cannot be successfully made (or executed) by private entities, as the goodness of the goods resulting from these decisions can be realized only by the state. I further defend the view that performance by the state requires the direct involvement of public officials. Only public officials can act in the name of the members of the political community.
The book aims at challenging the instrumental premise underlying the debates concerning privatization. Public provision of certain goods is necessary, not because the state is better at providing these goods, but because these goods should be provided in our name as members of a political community. In doing so, the book will examine questions such as who can act in the name of the state (or its citizens), what counts as representation, what it means to be a public official etc. It is therefore a research concerning the foundations of the legitimacy of the state and its role in public life.
Harel, Alon. Why Law Matters. Oxford: Oxford University Press, 2014. German: Wozu Recht? Rechte, Staat und Verfassung im Kontext moderner Gesellschaften. Freiburg/Br.: Karl Alber, 2018 (= Kosmopolis, Band 5).
-. "The Case Against Privatization." Philosophy and Public Affairs 41, 67 (2013): 67-102.
-. "The Easy Core Case for Judicial Review." Journal of Legal Analysis 2, 1 (2010): 227-256.
Publikationen aus der Fellowbibliothek
Harel, Alon (
Embracing the tension between national and international human rights law : the case for discordant parity
Harel, Alon (
The case against privatization
Harel, Alon (
The easy cor case for judicial review