Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 30: Contracting Out and ‘Public Values’: A Theoretical and Comparative Approach
Jean-Bernard Auby When ‘public tasks’ are entrusted to private actors through contracts – be they ‘Private Finance Initiative’ (PFI) contracts in Great Britain, ‘concesiones de obras publicas’ in Spain, ‘délégations de service public’ in France, public-private partnerships of various kinds elsewhere – how can we ensure that these tasks are performed in ways that respect ‘public values’? By that, I mean, of course, the core legal principles that public bodies must themselves respect when they act directly. These principles are both substantive (such as respect for fundamental rights, transparency, non-discrimination, or proportionality) and procedural (such as due process, or notice and comment rulemaking). This question is neither quite new nor particularly old. It raises intellectual and legal conundrums that administrative law must confront if it is to respond to current developments in state/society relations. It is, one might say, a characteristically post-modern administrative law question. The chapter is organized as follows. Section 1 defines the basic, generic risks inherent in contracting out, so that my comparisons can really focus on comparable matters. Section 2 argues that one must distinguish between two different – although related – problems: those that concern applicability and those that concern enforcement. Section 3 then claims that all legal systems, and, most importantly, all systems of administrative law, find these problems difficult to solve effectively. In conclusion, Section 4 sketches out some hypotheses that could explain why administrative law systems have that difficulty. 1. Contracting out: the risk of public values avoidance 1.1. The concept of contracting out...
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