The Rise of the Regulatory Constitutional Welfare State, Publicization, and Constitutional Social Rights: The Case of Israel and Britain

• Author: Gila Menahem,Hadara Bar-Mor,Lilach Litor
• Published date: 01 September 2020
• DOI: 10.1177/0002716220964385
• Date: 01 September 2020

964385ANN
THE ANNALS OF THE AMERICAN ACADEMYThe Regulatory Constitutional Welfare State
research-article2020
This study investigates the mechanisms that courts
apply to expose private social service suppliers to con-
stitutional duties. In doing so, we suggest two variants
of welfare regimes: the regulatory constitutional wel-
fare state and the regulatory constitutional neoliberal
welfare state. We outline how constitutional rights,
including social rights, are applied to private entities,
and the tests that courts use in doing so. We then ana-
lyze the transformation of traditional jurisprudence in
The Rise of the Israel since the 1990s, and we discuss developments in
British jurisprudence, which embraces a neoliberal
Regulatory
approach. We end with an analysis of the differences
between British and Israeli jurisprudence to highlight
our theoretical framework’s contribution to compara-
Constitutional tive research.
Welfare State, Keywords: regulatory state; welfare state; constitu-
tional; neoliberal; publicization; polymor-
Publicization,
phic regulatory regimes
and
Constitutional The relationship between the welfare state
and the regulatory state has recently been
reconsidered by scholars in light of changes in
Social Rights: how public services are delivered. The regula-
tory state is a model in which rule-making
The Case of regarding markets is used as a means of advanc-
ing public policy, whereas the welfare state is a
Israel and
model aimed at advancing social justice and
fulfilling social rights. The significance of recent
Britain
development lies in the understanding that the
regulatory state itself—which has always been
captured as reflecting a neoliberal ideology—
can be a mechanism for enhancing social policy
and the model of the welfare state.
One of the recent and promising attempts to
grasp the changes taking place in the way
By
LILACh LITOR,
Lilach Litor is a lecturer at The Open University of
GILA MeNAheM,
Israel. Her research focuses on the intersection of pub-
and
lic law, labor relations, and public policy. She is the
hADARA BAR-MOR
author of the book Strike: Law, history and Politics
(2019) and co-author of Judicial Activism and Passivism
(2008).
Correspondence: Lilachli@openu.ac.il
DOI: 10.1177/0002716220964385
ANNALS, AAPSS, 691, September 2020 189

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The ANNALS OF The AMeRICAN ACADeMY
governments provide social services in recent years involves exploration of the
ways in which regulatory regimes interact with welfare regimes. Majone (1994;
1999, 3) viewed the rise of the regulatory state as intertwined with the spread of
privatization and contracting services out and as an alternative form of state
organization that competes with the welfare state. And yet Levi-Faur (2014, 600)
claims that Majone’s view of the regulatory state fails to recognize that these state
regimes can coexist. Investigating this interaction and the factors shaping it in the
welfare services arena is the purpose of the current article.
While focusing on the preservation of welfare norms and social rights within
the framework of the regulatory state, we start with the wave of privatization,
viewed as the core process shaping the regulatory state’s evolution, which began
in the 1980s and rapidly diffused throughout the world in the context of neo-
liberalism’s emergence (Levi-Faur 2005; Kus 2006; Mabbett 2010). Looking into
the preservation of welfare norms, we follow Benish and Levi-Faur’s (2012) claim
that through publicization, which extends public law norms to private entities
(Freeman 2003; Metzger 2009; Benish and Maron 2016), public law norms and
administrative law requirements can serve as a central accountability mechanism
and diagnostic instrument for the state.
Within this conceptual framework, Levi-Faur (2013, 2014) distinguishes
between the goals and tools of welfare and regulatory states as regulatory states
may pursue various goals and welfare states may use a variety of policy tools.
Benish, haber, and eliahou (2017) point out that this split between the goals and
tools of welfare and regulatory states opens up a space in which both types of
state can coexist. We follow this line of reasoning and focus on one tool that both
regulatory and welfare states may use: publicization. In most cases, publicization
takes the form of declaring nongovernmental organizations (NGOs) as well as
those private corporations that supply welfare services to be hybrid bodies having
both public and private characteristics. This enables the application of public law
norms, originally binding only public authorities, to private entities providing
public services (Freeman 2003; Metzger 2009). We suggest publicization to be
one type of interaction conducted between goals and tools that may shape a space
for coexistence of the regulatory and the welfare state. Braithwaite (2008 in
Stewart 2014) suggests that regulatory capitalism represents hybridization
between privatization of the public and publicization of the private. While pri-
vatization has been widely studied, publicization has been much less documented
(Stewart 2014). In this study we attempt to address this gap by investigating the
publicization that courts apply to private entities supplying social services. They
Gila Menahem is a retired professor, Department of Public Policy, Tel Aviv University. She
studies policy formulation, policy paradigms, and policy networks. Her recent research deals
with collaborative governance in local municipalities. She has coedited two books, Public
Policy in Israel (Frank Cass 2002) and Policy Analysis in Israel (Policy Press 2016).
Hadara Bar-Mor is an associate professor in the School of Law at Netanya Academic College,
Israel. Her fields of research include labor and employment law, corporate law, and nonprofit
law. Her recent articles deal with the nature of strike as a basic right and with lifting the veil
in employment tribunals.

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The ReGuLATORY CONSTITuTIONAL WeLFARe STATe
191
apply this publicization by declaring these bodies to be hybrid, which allows them
to be subject to dual systems of law—private and public (Kosar 2011).
Benish, haber, and eliahou (2017) refer to systems where regulation is a key
policy tool in safeguarding social welfare values and outcomes as “regulatory
welfare states.” Combining the polymorphic argument and that of the role of
publicization in the preservation of public law norms and constitutional rights, we
suggest distinguishing between two variants of regulatory regimes: the regulatory
constitutional welfare state and the regulatory constitutional neoliberal welfare
state. Within the regulatory constitutional welfare state, the application of consti-
tutional rights on services delivered by private entities is an attempt to preserve
the welfare norms in privatized welfare services. Publicization is the major way
to protect constitutional social rights in this type of regulatory state. Conversely,
the regulatory constitutional neoliberal welfare state preserves the distinction
between the public and the private sphere and thus refrains from applying con-
stitutional rights to private entities. These two variants—the regulatory constitu-
tional welfare state and regulatory constitutional neoliberal welfare state—are
both subcategories of the regulatory welfare state, given that the regulatory
welfare state can take different forms and be of different types (Levi-Faur 2014).
We further suggest that one major factor shaping the differences between the
variants is the approach that the jurisprudence embraces regarding the applica-
tion of constitutional rights through publicization. In attributing this role to
courts, we follow previous research that has pointed to the role of judicial deci-
sions in regulatory policymaking. For instance, Miles and Sunstein (2006), when
discussing whether judges make regulatory policy, claim that determining new
rules regarding the market activity of private bodies is equivalent to formulating
regulatory-like decisions. This results from statutory ambiguities often requiring
policy-like judgements but also from the courts’ duty to monitor the activity of
public regulatory agencies and governmental actors regarding their interpreta-
tion of vague laws.
Publicness, Publicization, hybridity, and
Regulatory Welfare Regimes
Benish and Mattei (forthcoming) suggest that hybridity takes on different
dynamic arrangements, a reflection of the large range of organizations providing
social services. Some are clearly located in either the public or the private
domain, namely: they are either public or private entities at their core. Others
have both public and private features and are not easily characterized as one or
the other. Publicness theory (Bozeman 1984) can be useful for the classification
of hybrid bodies. Publicization theory claims that classification of organizations
as private or public requires a multidimensional approach that positions organiza-
tions along the public-private continuum (Anderson 2012). The concept of pub-
licness is operationalized by a series of interval measures, placed in direct
competition with traditional definitions of the public nature of an organization,

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that is, public as opposed to private ownership (Bozeman and Brestschneider
1994). Following Bozeman and Brestschneider (1994), we suggest...