Privatizing War

Friends and foes of the privatization of norm enforcement share a commitment to the rule of law. Its moderate friends believe that norm enforcement can comply with the rule of law even if it is carried out by private actors. Its radical friends hold that the rule of law obtains only if private actors are given an essential role in the enforcement of norms. Contrastingly, enemies of privatization object to it on the grounds that private actors are simply unable properly to enforce norms in compliance with the rule of law. This chapter argues that Hadfield and Weingast’s radical defense of the privatization of norm enforcement does not translate well to the use of war as a means to enforce international norms, whatever its merits in municipal contexts. It then rejects one of the most plausible arguments against all forms of privatized norm enforcement in general, and of war enforcement in particular, recently developed by Alon Harel. Drawing on the criticisms of those two views, the author provides an argument for the moderate privatization of war.

Why Law Matters by Alon Harel*

Alon Harel’sWhy Law Mattersarticulates a powerful and neglected approach for justifying legal institutions. Pushing back against the instrumentalist approach that dominates contemporary legal theory, he argues that legal institutions are not simply tools for realizing extrinsic values, but are themselves constitutive features of a just society. On this view, law is not an instrument for bringing about something that matters; rather, law itself matters and Harel elaborates a series of rich and insightful arguments to explain why. In this brief review, I will sketch the connection between Harel’s non-instrumental methodology and his account of (1) the nature of rights, (2) the distinctiveness of state authority, and (3) the justificatory basis of constitutional governance. I close with some critical comments about the non-instrumental justifications that Harel develops.

Equality, Assurance and Criminalization

The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book,The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.

Governmental Power: Quality or Identity? Comment on Alon Harel's Argument against Outsourcing Violence

What is the appropriate division of power between public officials and private individuals? The straightforward answer to this question, it seems, is that an official should have a power if she employs it (morally) better compared to a private individual. However, Alon Harel argues that this answer is misguided, or at least partially, since there are some decisions—mainly concerning the employment of violence—that should be made and implemented only by public officials regardless of the (relative) moral quality of the decision or action. In this comment I consider and criticize this argument.

Is it the Right Revolution? On Tushnet's The Rights Revolution in The Twentieth Century

This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book, The Rights Revolution in the Twentieth Century.This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.

Rejoinder

In this brief response I address two issues raised by these generous comments. Rivka Weill and Margit Cohn prod me to provide a more theoretical underpinning for the historical account I offered, and all three commenters suggest that the U.S. experience does not shed much light on the normative case for constitutional review presented by Alon Harel in other work. I sketch a theoretical account of the historical narrative, grounded in the structure of U.S. government and politics. That sketch may have some implications for conceptualizing the course of constitutional development in other polities. Then I raise some questions about Harel's theory of constitutional review as a mechanism for providing individuals with a forum in which they can receive an explanation of why they are properly being subjected to treatment that harms them individually, if one is available. I end with a suggestion connecting the two components of this Rejoinder.