Rebalancing Public & Private Interests

Over the past decades, Western democracies have seen a shift in public management from government to governance. Albeit that this shift takes many shapes and forms and is not necessarily a complete transformation away from centralized governmental responsibilities, forms of governance which include both private and public actors are commonplace. The idea that private actors play a key role in decisions about public interests has received critique, while at the same time some more networked types of governance involving both public and private actors has also been welcomed as effective and legitimate. In addition to semi-public institutions and inter- and supranational governmental organisations, private actors have also been given substantial responsibilities in the regulation and protection of public interests.  

Government authorities often share supervisory responsibilities with private actors. These private actors can refer to corporations, non-governmental organisations and citizens. Corporations or sector organizations draft codes of conduct and might cooperate with auditors or certifiers to assess them (e.g. ISO standardization). Government authorities may also outsource delineated supervisory tasks to companies (e.g. classification societies). Non-governmental organisations, investigative journalists and even individuals or employees may also contribute to the protection of public interests by taking up roles as a watchdog or whistle-blower. Overall, the interaction of public and private interests has become more complex in recent years, whereby it became increasingly difficult to distinguish private and public interests or distinguish public and private actors.  

There are multinational corporations who operate on a global scale and whose financial power as well as influence on the fabric of society often exceed that of many nation states. Think of companies just as Google, Amazon or Facebook, who are characteristically less bound by the limits of national sovereignty and jurisdiction, but who in practice occupy a fairly dominant social position and significantly impact the lives and well-being of citizens. Also the environmental and public health crises we continue to face in contemporary society make clear that the responsibility for the future lies with both public and private actors given the sheer magnitude and complexity of those challenges. Whether it concerns the privatization of previously public services or activities of public interest (e.g. ProRail, PTT, UWV or the energy sector), self-regulation in certain market sectors (e.g. codes of conduct in the financial sector), or the determination of public expectations for private activities (e.g. government interventions at banks or insurers), the result is a complex mix of interests and actors; sometimes in competition, sometimes in coalition.  

In this changing world, the question how public interests can be best guaranteed became more topical. In some of these developments of globalisation, privatization, and digitization there are situations where public interests are at odds with each other and then the question arises which interests takes priority in which circumstance. To what extent can public interests and values, against the background of the trend towards a compact(er) government, be effectively safeguarded via private relations in a legal system that is partly based on self-regulation and autonomy of private parties. In particular, the necessary pursuit of a more sustainable society, as laid down in the Sustainable Development Goals (SDGs) of the United Nations, poses major challenges for the Netherlands, Europe and the rest of the world. This mainly concerns public interests and values, such as human rights (e.g. protection of family life and property rights), environmental and climate policy, distribution of welfare and care, social security and workers' rights, taxation, general utilities, stability of the financial sector, competition law and the position of consumers and investors, good corporate governance(governance). Public and private actors, both individually and in interaction with each other, all play a role in these multi-layered and multi-actor governance structures. In other words, traditional legal concepts and frameworks need a recalibration against the background of the substantial changes in the public and private domain. The law has a role to play in providing answers to developments like globalization, digitization, and privatization and in face of the environmental and public health crises. This requires innovative research into new modes, means and models of governance to help address key societal challenges.  

Questions addressed in this research line lie at the intersection of legitimacy and effectiveness (Sectorplan Rechtsgeleerdheid, 2018, p. 77). For instance: Which public interests should for instance be the sole responsibility of public actors and if so which governance actors are best place to take up this responsibility, nationally and internationally? In which ways can a legal framework safeguard public interests while involving private actors?  

Within Erasmus School of Law scholars work on various subtopics related to the overall public-private challenge. This research line combines national, international and comparative approaches and has a cross-disciplinary and cross-sectoral set-up to guarantee an integrated problem approach. The research under the sectoral plan strives for both academic excellence and societal relevance.  

Research line of Public-Private
Figure 1: Research line of Public-Private Interests
Research community of Public-Private Interests
Figure 2: Research community of Public-Private Interests

The digitization of society is relevant to law in various ways. New technological developments might put pressure on the foundations of the legal system. Vice versa, the law can also make use of technologies to provide for a secure analysis of data in legal practice and legal studies. The question is whether and how the law can facilitate digitization while safeguarding public and private interests.

Law and regulation play an important role in ensuring a sustainable future - ecologically, socially and economically. In fact, several prominent trials in the Netherlands and abroad put the law front and center in addressing sustainability challenges and in settling debates between private and public interests. Examples are the Milieudefensie vs. Shell case or the Urgenda judgement in the Netherlands that used a variety of legal avenues and mechanisms to go to trial on matters of sustainability. These and other cases make clear that meeting the challenges of climate change and socio-economic inequality requires strong legal frameworks that safeguard public interests. Legal research can further the understanding of this sustainability challenge by critically assessing normative assumptions that underly legal frameworks and by studying how these legal frameworks might contribute to solutions to the sustainability challenge.  

The Covid-19 pandemic demonstrated (once again) how access to universal healthcare and the protection of the right to health are nods of convergence and interaction of -often conflicting- public and private interests and actors. For example, against the efforts of some countries to push against a global patent pool for Covid-19 drugs, there was a political and legal tour de force to subvert the traditional logics for the allocation and distribution of health products to protect, not only private actors, but also public interests.

In addition to the traditional players in the realm of health(care) (e.g. pharmaceutical companies), big technological companies have now also entered the market for the development of medicinal products and devices. Against this heavily privately dominated market, the question therefore arises on how to allocate health goods and services at a national, transnational and global scale to promote a healthy society, protect the right to health and guarantee access to healthcare.  

Law and regulation related to all global challenges of equity, sustainability, finance and health are increasingly located at other levels than the nation state. Regulation lies at the intersection of international and European law, both public and private. Not only states play a role in regulation of transnational challenges, because increasingly also private actors have taken up a responsibility for or have been called upon to take up a responsibility in guaranteeing public interests. 

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