Article written by 2009 DPDF State Violence Fellow Yael H. Berda and Gilad Barnea, featured in Tel Aviv University Journal of Law and Social Change, Volume 3:
The article, written by lawyers who petitioned to the Supreme Court against the law allowing the establishment of a private prison, discusses the lessons from the judgment, which invalidated the law, towards the continued legal and public battle against the privatization of state services. The article analyzes three different aspects: political theory, constitutional theory and the strategy of cause lawyering. The primary contention in the petition, which was an innovation from the viewpoint of constitutional theory, was that the privatization of state services, which constitute part of the state’s sovereign function, in effect strikes at the governmental and institutional structure of the state. This is a broad conception of human rights, which also encompasses the principles of the rule of law and of the separation of powers. The damage to the governmental structure, following the state’s forfeiture of core powers, may lead to the violation of rights protected by the Basic Law: Human Dignity and Freedom. In addition, the article posits the legal work against privatization of prisons within the framework of the different kinds of public interest lawyering. It also refers to the ideologically and morally complex legal strategy adopted by the writers who, as social activists, view their activity as part of the public campaign against privatization of state services in general, and the prison system in particular. Finally, the writers chart the possible legal steps using the institutional-structural approach to assail other examples of privatization.