2. Historical Background
• The distinction arose out of a double movement in
modern political and legal thought .
---- 16th Century emergence of Nation-State and theories
of sovereignty
----- Reaction to the claims of monarchs and parliaments
for unlimited law making power
• Development of countervailing forces known as private
sphere
• Natural rights theories in the 17th Century succeeded in
limiting such powers in the sphere of property and
religious conscience
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3. HISTORICAL ANECDOTE
• Even in the 16th Century judges still analyzed
taxation as a private gift from the donor- the
taxpayer.
• Here, parliament was considered as simply
playing the role of a facilitator.
• Taxation became part of public law with the
development of sovereignty
• Removal of public officials from office was
to be challenged as a matter of property
related question
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4. Judges and jurists whose hostility to the
statutes reflected the view that there were
situations where State regulation was
dangerous and unnatural
Dangerous public intrusion into a system based
on private rights
Dartmouth College case (1819) – in the US,
business corporations were freed from the
regulatory public law
Punitive damages for torts were removed from
public domain- combination was unhealthy
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5. • 19th Century was the watershed in England & the US
• Market becoming the central legitimating institution
• Clear distinction was to be recognized
(Atiyah, The Rise and Fall of Freedom of Contract,
1979)
• To counter the “tyranny of the majority”- the idea of
apolitical private sphere was to be invented
MARKET– CENTRE STAGE
OF THE LEGAL DISCOURSE
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V . T . T H A M I L M A R A N , D E A N / L A W
6. ABOUT TURN OF THE JURISTS
Lochner v. New York (1905)
Constitutionalizing freedom of contract
Thirty years of attack culminating in the
taking over by the Realist movement
Oliver Holmes, Brandies, Cardozo
Roscoe Pound, Wesley Hohfeld and Karl
Llewelyn- attacking the premise
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7. • Attack on the assumption based on
political economy
• All laws are coercive and have distributive
consequences ….?
• Delegation of coercive public power to
individuals? To be justified by public
policies?
• Contract – the most private of the 19th
century legal category- was
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8. PROGRESSIVISM AND
PUBLIC INTEREST
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Need for the role of the State in promoting public interest
20th century progressivism dominated until WW II
Public Interest – in the name of the people to entrench self
interest of the rulers – competition of groups
Redefining the Market as a political process
Public interest and private self-interest
Realist realized the need to limit the private greed
9. POST- WW II FEARS
• Public interest- a gateway to totalitarianism?
• Need for reformulation of public interest
• Revival of natural rights individualism
• Symptom of the collapse of the distinction
• Growth of large-scale corporate concentration
• Acquiring coercive power formerly reserved for
governments
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10. Can private institutions exercise
coercive powers?
In both traditions, public law pertains
to government
Coercive powers – sign of sovereign
power
Can they be delegated to private
institutions?
Privatizing public values?
Values and interests – can they
cohabit?
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11. “Emptying the Public”
Public services and institutions
Labour market deregulation
Rolling back of various welfare measures
Privatization of providing goods & services
Contracted/delegated or relegated to
private entities
From military contract to prison
management
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12. Colonization of Public
Colonization by private
Use of force- governing rules?
Decreased power of the State
Increased power of the market
Public ordering of private activity
and vise versa
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Current challenges to the distinction
•Three mayor layers:
•Ability to identify each sphere’s core features and
functions
•Separateness of the spheres
•Institutional decision making mechanisms in
delineating the spheres
•Is there anything that is inherently ‘public’?
•What does constitute “public-ness”?
•Coercive bodies –police, military and prisons?
•What about parliament?
14. Sundar v. Chattisgarh (2011) 7 SCC 547
Writ challenging the appointment SPOs
Violation of Art. 14 & 21 of the Constitution
Judgment promoting human rights and
constitutionalism
Critique on extensive discussion of economic policy
Buffer to unchecked State power
Mechanism to promote more inclusive economic
policy-Directive Principles
Centre’s responsibility of upholding human rights
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Private Policing
15. Private Prison?
• Academic Center of Law & Business v. Minister of
Finance HCJ 2605/05 (Nov. 2009)
• Liberal States are having private prisons
• Israeli Supreme Court striking down the Prisons
Ordinance Amendment Law, 2004 (28)
• The risk of unchecked abuse of powers
• Private entity employing governmental powers
violate human dignity and liberty
• Not to be subject to the use of coercive measures
by private for-profit corporation
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16. Public Freedom & Private Labour
International Transport Workers Federation v.
Viking Line (2007) ECR 01-10779
EU Law/ Labour Law/Human Rights/Legal Theory
Supremacy of the Law
Fundamental right to collective action (strike)
guaranteed by EU Law
Fundamental freedom of movement of private entities
within the EU territory
Principle of proportionality
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17. • Nothing is public/private
• Core executive powers are for the
government to execute
• What is the limit? International Law (for
which States are private actors) decides
• Globalization and Privatization
• Can human rights be guarded by private
actors?
• Law becomes transgender
Conclusion
