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Infusing Public Law into Privatized Welfare: Lawyers, Economists, and the Competing Logics of Administrative Reform

Published online by Cambridge University Press:  01 January 2024

Avishai Benish  and
Asa Maron
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Abstract

Along with the trend toward “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization,” the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare-to-work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post-bureaucratic setting. The study demonstrates how eventually public law norms were re-infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.

Type
Articles
Information
Law & Society Review , Volume 50 , Issue 4 , December 2016 , pp. 953 - 984
Copyright
© 2016 Law and Society Association.

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Footnotes

The authors would like to thank Michael Adler, Sharon Gilad and Ronen Mandelkern for their insightful comments on an earlier draft of this article, as well as the editors and the anonymous reviewers for their valuable and helpful comments. The article also benefited tremendously from discussions with Tomas Burke, Lauren Edelman, Malcolm Feeley, Liora Israël, Jérôme Pélisse, and Rachel Stern. Avishai Benish would like to thank the Center for the Study of Law & Society and the Institute for Jewish Law and Israeli Studies at the Faculty of Law, University of California, Berkeley, for greatly facilitating the writing of the manuscript by providing an intellectually inspiring environment and impeccable hospitality during his term as a visiting professor in 2014–15. Asa Maron would like to thank the Israel Institute and the Taube Center for Jewish Studies at Stanford University for their generous support, and the Department of Sociology at Stanford University for their outstanding hospitality.

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