Vtt 2014

Recognition of ‘Transgender’ Law

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Historical Background

• The distinction arose out of a double movement in

modern political and legal thought .

---- 16th Century emergence of Nation-State and theories

of sovereignty

----- Reaction to the claims of monarchs and parliaments

for unlimited law making power

• Development of countervailing forces known as private

sphere

• Natural rights theories in the 17th Century succeeded in

limiting such powers in the sphere of property and

religious conscience

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HISTORICAL ANECDOTE

• Even in the 16th Century judges still analyzed taxation as a private gift from the donor- the taxpayer.

• Here, parliament was considered as simply playing the role of a facilitator.

• Taxation became part of public law with the development of sovereignty

• Removal of public officials from office was to be challenged as a matter of property related question

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Judges and jurists whose hostility to the statutes reflected the view that there were situations where State regulation was dangerous and unnatural

Dangerous public intrusion into a system based on private rights

Dartmouth College case (1819) – in the US, business corporations were freed from the regulatory public law

Punitive damages for torts were removed from public domain- combination was unhealthy

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• 19th Century was the watershed in England & the US

• Market becoming the central legitimating institution

• Clear distinction was to be recognized

(Atiyah, The Rise and Fall of Freedom of Contract,

1979)

• To counter the “tyranny of the majority”- the idea of

apolitical private sphere was to be invented

MARKET– CENTRE STAGE

OF THE LEGAL DISCOURSE

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V . T . T H A M I L M A R A N , D E A N / L A W

ABOUT TURN OF THE JURISTS

Lochner v. New York (1905)

Constitutionalizing freedom of contract

Thirty years of attack culminating in the

taking over by the Realist movement

Oliver Holmes, Brandies, Cardozo

Roscoe Pound, Wesley Hohfeld and Karl

Llewelyn- attacking the premise

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• Attack on the assumption based on

political economy

• All laws are coercive and have distributive

consequences ….?

• Delegation of coercive public power to

individuals? To be justified by public

policies?

• Contract – the most private of the 19th

century legal category- was

reconceptualized

• Shelley v. Kraemer (1948)- choice of policies

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PROGRESSIVISM AND

PUBLIC INTEREST

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Need for the role of the State in promoting public interest

20th century progressivism dominated until WW II

Public Interest – in the name of the people to entrench self

interest of the rulers – competition of groups

Redefining the Market as a political process

Public interest and private self-interest

Realist realized the need to limit the private greed

POST- WW II FEARS

• Public interest- a gateway to totalitarianism?

• Need for reformulation of public interest

• Revival of natural rights individualism

• Symptom of the collapse of the distinction

• Growth of large-scale corporate concentration

• Acquiring coercive power formerly reserved for

governments

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Can private institutions exercise

coercive powers? In both traditions, public law pertains

to government

Coercive powers – sign of sovereign

power

Can they be delegated to private

institutions?

Privatizing public values?

Values and interests – can they

cohabit?

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“Emptying the Public”

Public services and institutions

Labour market deregulation

Rolling back of various welfare measures

Privatization of providing goods & services

Contracted/delegated or relegated toprivate entities

From military contract to prisonmanagement

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Colonization of Public

Colonization by private

Use of force- governing rules?

Decreased power of the State

Increased power of the market

Public ordering of private activity and vise versa

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Current challenges to the distinction

• Three mayor layers:

• Ability to identify each sphere’s core features and functions

• Separateness of the spheres

• Institutional decision making mechanisms in delineating the spheres

• Is there anything that is inherently ‘public’?

• What does constitute “public-ness”?

• Coercive bodies –police, military and prisons?

• What about parliament?

Sundar v. Chattisgarh (2011) 7 SCC 547

Writ challenging the appointment SPOs

Violation of Art. 14 & 21 of the Constitution

Judgment promoting human rights and constitutionalism

Critique on extensive discussion of economic policy

Buffer to unchecked State power

Mechanism to promote more inclusive economic policy-Directive Principles

Centre’s responsibility of upholding human rights

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Private Policing

Private Prison?

• Academic Center of Law & Business v. Minister of Finance HCJ 2605/05 (Nov. 2009)

• Liberal States are having private prisons

• Israeli Supreme Court striking down the Prisons Ordinance Amendment Law, 2004 (28)

• The risk of unchecked abuse of powers

• Private entity employing governmental powers violate human dignity and liberty

• Not to be subject to the use of coercive measures by private for-profit corporation

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Public Freedom & Private Labour

International Transport Workers Federation v. Viking Line (2007) ECR 01-10779

EU Law/ Labour Law/Human Rights/Legal Theory

Supremacy of the Law

Fundamental right to collective action (strike) guaranteed by EU Law

Fundamental freedom of movement of private entities within the EU territory

Principle of proportionality

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• Nothing is public/private

• Core executive powers are for the government to execute

• What is the limit? International Law (for which States are private actors) decides

• Globalization and Privatization

• Can human rights be guarded by private actors?

• Law becomes transgender

Conclusion