The Public/Private Distinction Now: The Challenges of Privatization and of the Regulatory State

Abstract

This Article examines what form the public/private distinction takes in contemporary legal consciousness. It proposes that while the public/ private distinction is still an important component of contemporary legal consciousness, the content of each sphere, their stability as distinct spheres, and their interaction with each other have significantly changed. This transformation occurred primarily due to the rise of the regulatory state and the increased visibility of the interconnectedness of the spheres due to public ordering of private activity in an age of widespread privatization. The current state of the distinction challenges courts, when these are asked by petitioners to define the proper scope of the spheres and decide on their boundaries. The Article critically examines the Israeli High Court of Justice decision in a prison privatization case, as a case that reflects the mismatch between the traditional understanding of the public/private distinction and a much messier reality in which the private and public spheres keep changing, and intermingling in new ways.