The article presents the argument that administrative decision-making should be understood as devoted to balancing between conflicting interests of individuals or groups, usually when none of the affected parties has predefined legal rights that are relevant to the substantial content of the administrative decision. Administrative decisions often have a direct effect not only on human and civil rights issues, but also on matters bearing on the quality of life, living conditions, prices of regulated products, and the allocation of government funds. (...) Since the decision as to which interest should prevail in the conflict is a distributive one and has many possible answers, the role of administrative law is primarily to ensure that these decisions are made fairly, with due weight given to the conflicting interests of the various groups and individuals involved. With this as background, the article shows how the doctrines of positive administrative law are designed to meet the challenge of coping with conflicting interests in the administrative decision-making process, using such examples as the prohibitions against decision-makers’ conflicts of interest and the rules regarding interest representation and judicial review. In the second part, the article applies the interest perspective to the administrative decision-making process in order to analyze the highly extensive regulation of land resources in Israel. The analysis concentrates on the Israeli Supreme Court decision in one of the most controversial petitions brought before it: against administrative decisions on the development of formerly agricultural lands. (shrink)

This article takes a close look at a rhetoric strategy, often used in an attempt to preserve an appearance of neutrality in conflicts over rights. This strategy rests on the concept of symmetry, and in particular concerns symmetry between so-called 'positive rights' (described as the right to obtain or have an object, to engage in an activity, or to enjoy a desired state of affairs) and 'negative rights' (the right not to have this object, not to engage in this activity, (...) or to prevent this state of affairs). When a positive and a negative right protect contradictory options, this strategy conveys that they are of equal standing. The article cautions against the risks entailed by this inference. The deceptive nature of symmetry is first examined in the context of procreation rights and subsequently in other contexts, including conflicts concerning freedom of expression, active euthanasia, and abortion. Our conclusion is that the explicit or implicit recourse to the argument from symmetry is a recurrent feature of rights discourse, deserving attention and cautious handling. (shrink)

Imprisonment calls into question the institutionalized violence of the state and its organs. It touches on the very core of the meaning of state sovereignty and concerns one of the most disempowered groups of society: indicted criminals. Therefore, privatization of prisons signals the willingness to apply privatization policies almost with no limitations. Private prisons have become a known phenomenon in many countries. After the debate on this issue seemed to lose its pragmatic value—in contrast to its importance on the theoretical (...) level—privatization of prisons reemerged as an issue of legal debate due to the Israeli Supreme Court decision that declared a law authorizing the establishment of a private prison unconstitutional. The following analysis evaluates this decision using it as a microcosm for studying the role of law in regulating privatization policies. The Article starts by studying the full range of privatization policies, in order to offer an analysis that would be relevant also to other cases along the privatization spectrum. It then challenges the traditional premise of public law that the move to privatization is merely a matter of policy and not of law. More concretely, the Article offers an analysis based upon distinguishing among three distinct spheres of discussion: the boundaries of privatization, the privatization process, and the regulation of privatized actions. This model of analysis is then applied to the case-study of prison privatization as decided by the Israeli Supreme Court. (shrink)