Reclaiming the Public defines and defends the intrinsic value of “the public” that resides in our public institutions and the officials that run them. The book argues that public institutions do not simply act for us but instead speak and act in our name; that is, they represent us. Representation requires that decisions made by public institutions or officials are consistent with the perspectives of citizens. If the decisions satisfy this requirement, these decisions are attributable to citizens, and citizens can be held responsible for them. This theory of political authority accounts for major features of our legal system, such as the noninstrumental grounds for the separation of law-making powers, the noninstrumental value of constitutions, the limits of privatization, the nature and value of public property, and the impermissibility of using artificial intelligence in setting certain policies and making certain decisions.

This chapter explores the question of what it means for a lawmaking institution to speak and act in our name. We maintain that different institutions can do so in different ways; even identical laws may have different meanings and significance depending on their institutional source.

We challenge the commonly held assumption that the institutional source of a legal norm – be it the constitution, legislation, and so on – does not affect its nature. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, “everyone is equally entitled to X,” they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right, not because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law. We further discuss the doctrinal implications of the argument, defending a new kind of remedy: institutional remedies.

Reclaiming the Public defines and defends the intrinsic value of “the public” that resides in our public institutions and the officials that run them. The book argues that public institutions do not simply act for us but instead speak and act in our name; that is, they represent us. Representation requires that decisions made by public institutions or officials are consistent with the perspectives of citizens. If the decisions satisfy this requirement, these decisions are attributable to citizens, and citizens can be held responsible for them. This theory of political authority accounts for major features of our legal system, such as the noninstrumental grounds for the separation of law-making powers, the noninstrumental value of constitutions, the limits of privatization, the nature and value of public property, and the impermissibility of using artificial intelligence in setting certain policies and making certain decisions.

Political authority can be tyrannical even when the laws it creates are grounded in reason, the authority enjoys the consent of the governed, and its lawmaking procedures are egalitarian and fair. To provide a more appealing account of political authority, we argue that a certain conception of the public provides the basis for explaining what political authority is and what might render it legitimate. An institution or official has legitimate authority when it speaks and acts “in our name,” rather than “for us.” This implies that its rules can be characterized as “our rules” and, consequently, that we are responsible for these rules. To count as ours, these rules should satisfy the condition of perspectivism. The rules must reflect the perspective of citizens. Perspective is an abstract concept that can take different interpretations, some of which we describe in this chapter. When this condition is met, the authority’s decisions are attributable to the citizens, rendering them responsible for these decisions.

The privatization of government functions has given rise to instrumental questions concerning the execution of these functions. Proponents often hail the efficiency of private institutions, while opponents often speak of the accountability of public institutions. This chapter challenges the instrumentalist terms of this debate. It establishes that there are principled, noninstrumentalist arguments against the privatization of certain goods. More particularly, it argues that there are goods that are “inherently public,” namely that they cannot be provided by private entities, even in principle.

The chapter also maintains that to count as an act of the state, the person who provides the good (the key case studies are inflicting criminal punishment and waging wars) must be a public official. To defend this latter position, the chapter develops an abstract account of public officials as agents who defer to the state’s judgments.

Artificial intelligence-based algorithms are, and will likely be, used extensively by public institutions. We argue that decisions made by AI algorithms cannot count as public decisions, namely, decisions that are made in the name of the public, and that this fact bears on the legitimacy and desirability of deploying AI in lieu of public officials. More specifically, the extensive use of AI in public institutions distances the public from decisions and, hence, undermines their authorship over those decisions.

The assumption underlying the analysis inandwas that there are cases where the value of a decision-making process hinges not only on the quality of the output, namely, the quality of the resulting decisions, but on who makes the decisions and, also, how they are being made. Inandit was argued that public decisions are characterized by the fact that they are being made in the name of all and, further, that the legitimacy and the value of such decisions hinge on the agent who makes them. This chapter identifies more concrete ramifications of this observation. More specifically, it argues that to count as being made in our name, decisions must be publicly discussed, openly debated, and, more concretely, satisfy three conditions: transparency, particitability, and challengeability. Decisions that fail to meet these conditions cannot be characterized as genuinely public decisions. The chapter argues that these conditions are often not met (or not sufficiently met) by AI algorithms. Further, it argues that the source of the failure at issue is structural, rather than contingent or transitory.

This chapter addresses a basic question of general jurisprudence, that is, what difference law makes in moral space. It argues that a central characteristic of law is not necessarily that it tells us what morality (or justice) might dictate. Rather, it establishes a way of attributing decisions to all of us and not to any one of us in particular. Law’s distinctive moral virtue is not justice but legitimacy. What renders this possible is the operation of public officials whose value lies in acting in our name. The chapter defends what we label the standing conception of law, according to which law’s most basic moral contribution is that of establishing an entity whose normative pronouncements could count as being made in the name of (or even by) the people.

The typical arguments concerning privatization are instrumental, relying heavily on comparing the performance of a public functionary with that of its private counterpart. This chapter challenges this approach for leaving unaddressed other important consequences of shifting responsibilities to private entities. Privatization cuts off the link between processes of decision-making and the citizens and, therefore, erodes political engagement and its underlying notion of shared responsibility. Consequently, privatization undermines individuals’ public autonomy.

The effects of privatization are not restricted to the question of whether a public prison is better or worse qua prison than its private counterpart, or whether private forestry is better or worse qua forestry than its public counterpart. Stripping the state of its responsibilities erodes public responsibility, for privatization is not only the transformation of detention centers, trains, tax inquiry offices, forestry operations, and so on, considered one service at a time. It is also the transformation of our political system and public culture from ones characterized by robust shared responsibility and political engagement to ones characterized by fragmentation and sectarianism.

This chapter addresses the questions of what public property is and why it matters. The key to defending public property lies in disambiguating the sense in which this system of rights with respect to external resources is public and, ultimately, about our property. Public property can be said to be ours in the sense that we can freely use it. On this view, held by lawyer economists, democratic egalitarians, and some Kantians, public property is akin to easement rights to enter and use a resource without the leave of its owner. The chapter criticizes proponents of the easement conception, arguing that they cannot but fail to explain why the “publicness” of the resource matters. It demonstrates that easement-like rights are fully consistent with a system of private property.

Instead, the chapter argues that public property’s distinctive value lies in control, rather than use, rights. Public property is ours in the sense that we are entitled to control it. That is, it extends autonomous agency to the construction of public spaces and resources. Public property places individuals in a position of collective self-government, manifested in the following two particular ways: First, expressing the ideas and commitments that the political community as a whole affirms; and second, exerting control over the construction and direction of the resources that make up the environment the individuals occupy.

Can States determine unilaterally what counts as a wrongful behaviour in the absence of public international adjudicative institutions? Can meaningful responsibility for wrongful acts exist in the absence of a public adjudicative entity? What happens in the case of a conflict between a unilateral (private) judgment of a State accused of having committed a wrong and the decision of a (public) international adjudicative institution? The authors advocate for a system based on conflicting judgments concerning responsibility made both by international adjudicative institutions (publicly) and by the States themselves (privately), what they refer to as the ‘discordant parity hypothesis’. The case for the overriding power of international adjudicative institutions is based on the importance of the State’s publicly recognized duties. The case for the overriding power of judgments made by States stems from its promise to facilitate active engagement of States with their obligations. The chapter embraces a system that recognizes the normative force of both (and the inevitable resulting conflicts).

Editing a volume, we have found out, requires much modesty on the part of the editors who discover that their own perceptions and convictions are not always shared by others and that the area they thought they are fully familiar with is much richer and more diverse than they expected. And yet, despite all of that, we are bound to analyze and systemize the subject matter of privatization with a particular emphasis on the contributions made in this volume. What we wish to do in this introduction is to both develop an exhaustive classification of the major approaches to the permissibility and desirability of privatization and identify their structural strengths and weaknesses. We then describe briefly the different contributions to the volume and conclude with some observations on the future of the study of privatization.