Through SSRN, I’ve just come across the article Globalization(s), privatization(s), constitutionalization, and statization: Icons and experiences of sovereignty in the 21st century by Judith Resnik of Yale Law School. Here’s the abstract:
What can democratic constitutional states offer that multinational corporations and global governance cannot? One answer, coming from recent decisions by courts in Israel and India, is policing and incarcerating, held to be activities that could not be constitutionally outsourced to third-party providers.
The articulation of an anti-privatization right is novel, but the activities it recognizes as belonging to the state have a long track record of distributing benefits across class lines to both public and private sectors. Police and prisons—along with courts as the conduit—are not often listed as “social rights” but ought to be, for they are government-provided services aiming to make both the citizenry and the state secure. The history of these services is a roadmap to statization, constitutionalization, privatization, and globalization, for the interactions among citizens, government, and third parties gave content to the roles of police, judge, and prison official. These actors in turn came to personify the state. During the twentieth century, constitutions and international conventions imposed new constraints on police, judges, and prisons when those subject to their authority gained recognition as rights holders.
Yet if institutions of surveillance, confinement, and control are the only obligatory relationships that governments have, democratic constitutional states distinguish themselves from corporate and transnational organizations solely through their unique capacity to legitimate the imposition of violence. For constitutional sovereignty to join privatization and globalization as sustaining twenty-first century metanarratives entails offering more than prohibition and punishment. To do so requires translating the great ambitions of the twentieth century—equality and dignity—into legible institutions with the gravitas associated with police, courts, and prisons. Other infrastructure functions need to be elaborated as state-based activities in which citizen and state partake and through which collective norms develop. Exemplary are postal networks, inscribed in some forty constitutions that allocate government responsibilities for or protect the confidentiality of the post. Yet, postal services are now also at risk of losing their identity as state-supported public platforms offering universal services within and across borders.
As blog readers may be aware, I extensively critiqued the Israeli Supreme Court’s reasoning in my recent article, Privatization and the Elusive Employee-Contractor Distinction, now published by the UC Davis Law Review. And, as an upcoming project, I’m also researching concepts of private delegation in different U.S. states and internationally, drawing on private delegation decisions at the U.S. federal level and in Texas, Israel, and Germany. I haven’t yet looked at the Indian decision that Resnik writes about, but it’s high on my list. Resnik’s article promises to be an important contribution to the literature on private delegation. Sorry if this is behind a paywall for some of you!