Is Rule of Law an Equilibrium Without (Some) Private Enforcement?

This chapter argue against the presumptive priority of government even in the domain of law: in recent work, the authors have developed a framework for analyzing law in which they suggest that the main distinction between legal and other social orders is the presence of an entity capable of changing rules. But an equilibrium in which these rules generate compliance does not require a centralized enforcement authority; indeed, the authors argue that fully centralized enforcement is in fact incapable of sustaining an equilibrium characterized by rule of law. Rather, the need to coordinate and incentivize voluntary participation under decentralized enforcement yields the normatively attractive legal attributes associated with the rule of law, and the authors draw on classical Athens to illustrate this model. On their account, private enforcement – in the sense of social sanctions and exclusion, limited use of force, and cooperation with authorized enforcers – are essential for a legal system to achieve the rule of law..

In Defense of Accountability as a Lens to Perceive Privatization’s Problems

This chapter responds to Debra Satz’s paper. It argues that a more expansive conception of accountability, which addresses the structural transformation of governance, includes concerns about distortion and equality. Through examples of security and military privatization, Dickinson maintains that such privatization has enabled the expansion of executive power and the fragmentation and diffusion of governmental authority, threats to accountability with serious consequences for democracy.

Public-Sector Management is Complicated

This chapter holds that the pre-history of this wave – the phase of “corporatization” of state-owned enterprises – served as the true driver of the changes Henry Farrell identifies, such as increased reliance on contracting. The author suggests that the reforms aimed to remove state-owned enterprises from the political sphere, as a means of redressing agency problems, but in so doing changed their governance to such a degree that they were virtually indistinguishable from the operation of private firms. The author identifies a number of circumstantial changes which affected the distribution of transaction costs, and which undermined the case for state involvement..

Privatization as State Transformation

This chapter argues that rather than constraining the state, replacing political inefficiencies with market competition, privatization has transformed the nature of state control to emphasize regulatory power. Rather than ushering in deregulation, as many anticipated, the author demonstrates that privatization has in fact increased states’ reliance on regulation. Such reliance has in turn produced far-reaching changes in the interactions among markets, states, and international regulatory processes.

Introduction

This chapter introduces the volume. It contextualizes the papers and sets out the organizational logic for the volume as a whole, presenting brief summaries of each chapter.

Coercion and Privatization

This chapter defends a moral presumption against the governmental provision of services. This non-instrumentalist defense of privatization contrasts with non-instrumentalist defenses of the governmental provision of services and instrumentalist arguments in favor of governmental or private provision of service. The author argues that non-instrumental normative considerations favor privatization because people cannot consent to the governmental provision of services and all else equal it is morally better if people consent to provide and receive services. Furthermore, without citizens’ consent, governments do not have the authority to tax citizens in order to provide services. And in most circumstances, citizens do not have enforceable duties to provide public goods to their compatriots so it is wrong for public officials to coerce them to do so..

Why Privatization Matters

Under the traditional view, the decision to privatize hinges exclusively on the question of who is most likely to make the just or correct decision: a public official or a private entity. This chapter challenges the traditional approach and argues that massive privatization as such has costs as it severs the link between decision-making processes and citizens, eroding the prospect of meaningful political engagement and civic shared responsibility.

Some (Largely) Ignored Problems With Privatization

More than efficiency and accountability are at stake in the decision to contract out publicly provided goods or publicly owned resources. This chapter makes the case for considering two other aspects of privatization: inequality and the erosion of public purposes. Moving a good or service out of the public sector can distort and fragment important public goals regarding that good or service, in part by changing the decision path by which that good or service is produced and distributed.

What Is Politics Without the State?

This chapter replies to Hadfield and Weingast, characterizing their model as a first, promising example of “Leninist game theory” – how a stateless utopia can nonetheless sustain the enforcement of the rule of law, the need for which in turn ultimately dissolves once exploitation and poverty are removed. Given the injustices of mass incarceration and racial subjection in the United States, a vision of reducing, if not eliminating, the coercive enforcement of law is attractive. Nonetheless, the author argues that the Hadfield-Weingast model actually provides a positive theory of dystopia. Rather than yielding an equilibrium of decentralized, private citizens enforcing laws that they rightly regard as commanding their obedience, the author holds that a more plausible equilibrium would provide for enforcement of the rule of law to secure dominant interests against a subject population without such enforcement powers. Insofar as Athens constitutes an example, it is as an unjust hierarchy rather than a democratic ideal: one in which rule of law prevails among citizens on the backs of slaves..

Freedom, Responsibility, and Privatization

This chapter argues that the logic of a principled distinction between public and private presupposes the existence of a liberal state, and that the key value liberals have typically appealed to in drawing the boundary is that of freedom. The author insists that such freedom is complex: in analyzing liberal freedom, we aim both at identifying the conditions under which agents can properly be held responsible (termed republican freedom), and at defining a social space within which the requirements of responsible agency may be diminished (market freedom). Liberalism unifies republican and market freedom; the debate over the boundary between public and private, understood this way, is core to its project, and is unresolvable.