The Zeal of Our Age

  • Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015), available at SSRN.
  • Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013), available at SSRN.
  • John Gardner, The Evil of Privatization, Univ. of Oxford (2014), available at SSRN.

Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery.

John Gardner warns of the futility of erecting a “conceptual stop,” and distills from Dorfman and Harel a more promising proposal, in these terms:

when certain actions are performed by non-state operatives, such as the employees of private contractors, they are incapable of realizing some important value that they are capable of realizing when they are performed by state officials, and that the important value in question is not captured by those who merely compare “the quality of the execution of the enterprise” as between the two classes of potential executors. (P. 3.)

But for Gardner it is still unhelpful to frame the issue this way, for it is

too narrow. Why should one restrict oneself to comparing a public functionary with a private functionary, having already identified some function that each is expected to perform? Surely an instrumentalist is entitled to say that although a private company is better at detaining or deporting or delivering mail or babies than a public body, nevertheless there are other bad consequences of moving over to a system in which detaining and deporting and delivering are handed over to the private sector which are not reflected in the quality of the detaining or deporting or delivering itself? (P. 4.)

What Gardner is awake to is the threat of creeping . . . —what I would call creeping de-socialism.

For privatization is not only the transformation of detention centres, trains, tax inquiry offices, forestry operations, and so on – considered one service at a time. It is also the creeping transformation of our political system and public culture from one of democratic oversight to one of plutocratic oversight. (P. 4.)

By way of clarifying why privatization is equally a move away from public governance (of any kind) and toward governance by corporate behemoths, Gardner points out the

complementary and in some ways continuous … transfer of power away from relatively independent professionals such as teachers, lawyers, architects, and doctors, and into the hands of large corporations, with their elaborate schemes of patronage and discipline and bureaucratic repression, replacing professionalism with “customer service” and “performance management”…. The contemporary zeal for privatization is not a zeal for independent-minded people who are only erratically susceptible to official or corporate patronage…. The zeal of our age is a zeal for the ever-increasing transfer of power, including political power, to the money industry. (P. 15.)

The wholesale problem is therefore not a conceptual one, but a matter implicating both political philosophy and a normative theory of political institutions (what Jeremy Waldron calls “political political theory”). Framing the issue as narrowly as Dorfman and Harel do has consequences.

Indeed aren’t we already giving the plutocrats the edge even by assuming that a system of government should be judged as a provider of various severable services, or clusters of services, to those we are now supposed to describe as its “customers”? If so, then [Dorfman and Harel are] surreptitiously stacking the instrumentalist deck in favour of privatization … landing instrumentalists with a narrow service-provider picture of government which allows the private sector to compete on quality of service provision, when the real question is: Can they compete on quality of government itself? For government itself is what the private sector is gradually morphing into. (P. 5.)

Gardner’s remarks were made in Harel’s presence, at a workshop on his book, Why Law Matters? of which his and Dorfman’s analysis made up a chapter. The two respond accommodatingly in their 2015 article. (Oral argument can make a difference.) But Gardner’s closing remarks are, to me, a disappointment.

In politics and policy, by and large, what we should currently do depends on what we have most cause to fear, and how we can best undermine it in advance of its arrival. The problems of social organization are themselves contingent and contingency is therefore an unthreatening feature of the solutions. The question, then, is not that of how we should eternally be organized, of which public sector pursuits are “essentially” public and which are not, but, as Bentham saw most clearly, of how to protect ourselves most effectively against the most egregious forms of misrule. (Pp. 16-17.)

Not fifty years ago, John Rawls offered a detailed answer to the question, how we should be eternally organized, “we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation. It has become fashionable to dismiss this as mere “ideal theory,” as Gardner seems to do while hurriedly invoking both Benthamite utilitarianism and Judith Shklar’s liberalism of fear. A careful (re-)reading of Rawls, particularly his Justice as Fairness: a Restatement (2001), offers a more coherent and practical way of thinking how to respond to “the coming plutocracy” (P. 9) that, in Rawls’s view, had long ago arrived and rested its boots on the common table. At least by 2001, Rawls was explicit that achieving justice as fairness requires democratic socialism or something very like it. It isn’t clear who Gardner has in mind, in admonishing “progressives who are bewitched by memories of a class war fought in a different era” (P. 16); but, which era is this? The war sounds awfully familiar.

Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015); Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013); John Gardner, The Evil of Privatization, Univ. of Oxford (2014).

What do you think? Leave a comment.

1 comment
  1. 1

    I’m honoured that Bill Edmundson chose for his Jotwell discussion my rather casual 2014 remarks on privatization, and delighted that he found so many of my words illuminating enough to be worth quoting. His one criticism hits home. I share his view that my final paragraph was unsatisfactory. I find it even more so after the voter insurrections of 2016. Probably, like most members of the ‘elite’ (as we mere university teachers are now apparently to classify ourselves) I was too sanguine about the near-term prospects for liberalism and social democracy. I did not imagine that the views hurriedly stated in my final paragraph would be put to the test so soon.

    Given its cursoriness, I am not surprised that the paragraph gives Bill the wrong impression of my wider outlook. In particular, it leads him to associate me with the ‘fashionable … dismiss[al]’ of the Rawlsian project as ‘mere “ideal theory”.’ That association is mistaken. I have always shared Rawls’ view that to work out what is better, we need to think first about what would be best. And I have always shared with him the view that this still holds even when the best is unattainable. In a long review (Journal of Law, Philosophy and Culture 6 (2011), 241) I gave Amartya Sen a very hard time for denying these Rawlsian truths .

    In a way, my quarrels with Rawls are the very opposite of Sen’s. I find Rawlsian ‘political liberalism’ not idealistic enough. That is because it abjures the kind of ‘comprehensive conception’ we find in J S Mill, in which liberal politics is but the institutional pursuit of wider ethical ideals to which we are also answerable in our personal lives – in particular by which we should be judging each other and, in appropriate cases, finding each other wanting.

    The Rawlsian attempt to keep personal ethics out of politics is philosophically unstable. Mirrored in the discourse of modern liberal politics, it also leaves liberalism insufficiently muscular. It encourages people to respect ways of life, points of view, and patterns of behaviour that in fact are worthy (at most) of being tolerated. Those who do not find all these things respectable are then constrained by the discourse of modern liberal politics to feign respect. That is what we have come to know as ‘political correctness’, and it is not surprising to see that its rise is playing a role in populist attacks on the established liberal order. It is the Achilles heal of liberal-minded people that they fear that even their own (liberal) comprehensive conception has (illiberal) authoritarian implications when applied to others. Ironically they create the conditions for the rise of truly illiberal authoritarians by surrendering to that fear. They turn liberalism into the feeble ideology that can’t even stand up for itself. (Just look at the lily-livered behaviour of University administrators when faced with even the most barking mad of student protests. These grown-ups should wearily tolerate teenage stupidity but instead they earnestly contrive to respect it.)

    You can see here that, of all the things I might have been up to in my final paragraph, the least likely is that I was advocating political quietism. I am out there on the militant wing of liberalism, an unapologetic liberal imperialist who thinks that Trump, Putin, and the warlords of Daesh are all similarly benighted medieval ignoramuses, nasty pieces of work in whose food I would cheerfully spit. But hold on! No spitting please! For in humble matters of political organisation I remain, like the later Rawls, a hopeful holdout for calm and cautious northern European social democracy with a weary tolerance of even its medieval ignoramuses (and its student protestors).

    The heyday of the welfare state, 1945 to 1979, was also a golden age in steady, peaceful European politics. Such a political environment, even with the odd Baader-Meinhof bomb, would surely be miles better than anything currently on offer. But there’s the obvious problem. It is not currently on offer. The huge soulless corporations of what I called ‘the money industry’ have infiltrated and colonized its institutions. Largely as a result, confidence in it has collapsed. Populations are no longer enthused by its defence. So the main question for ‘politics and policy’ (as I called it) is the question of how to cope with that: what would be the best way to anticipate and mitigate the severe threats to our great liberal civilization caused by the infiltration of institutions and the collapse of confidence.We should not automatically assume that the answer is: Stand up for the BBC! Stand up for the Trades Unions! Stand up for the NHS! Or even: Stand up for Parliament! Stand up for the Constitution! The point may come when placing all our hope in the same venerable structures that have seen us through the good times tends to hasten the demise of the good times. (Parents know that, when their sweet kids become grisly teenagers, one of the worst things you can do to restore their sweetness is to try to re-run the sweet times.)

    Notice that I was talking here about ‘politics and policy’. I was not talking about political philosophy. Do I think that political philosophy, by contrast, should be investigating (as I put it in the paragraph that worries Bill) ‘how we should be eternally organized’ – albeit presumably at a higher level of abstraction? I would be the first to admit that, since the level of abstraction is higher, the timescale is also likely to be longer. I would still, however, resist the idea that the solutions can be eternal, i.e. suitable for all imaginable circumstances. Wars, natural disasters, environmental changes, evolutionary mutations, alien invasions, you name it: all can change the facts in such a way as to change what would count as an intelligent response to them, even at the level of abstraction at which ideal theory in political philosophy operates. If you doubt it, ask yourself whether Athens in the 4th century BC, or even Herakleopolis in the 3rd Millenium BC, should ideally have been governed according to Rawlsian principles. Even if you suspect that the answer to be yes, you’d need to know a lot more facts to be sure. Not least the ones foregrounded by Rawls himself: Did ‘the circumstances of justice’ obtain in those times and places?

    I don’t think Bill and I differ on this point, or at any rate not fundamentally. For he thinks that political philosophers should be answering the question of ‘how we should be eternally organized’ only when the question is quite significantly tempered. He says: ‘“we” meaning, we citizens of modern constitutional democracies. “Eternally” meaning, as a scheme of cooperation for mutual benefit, intended to stably reproduce itself from generation to generation.’

    I have no quarrel with such relatively short timescales. Although I would add that they are question-beggingly demarcated by Bill. If we stop having a ‘modern constitutional democracy’ (say, thanks to the rise of medieval ignoramuses) it looks like we stop being the relevant ‘we’. And if stability is no longer the intention, then it looks like Bill’s eternity has just expired.

    You ca see here another problem with Rawls, and with much post-Rawlsian political philosophy.It defends its precepts only for conditions very much like those we are used to (for the conditions, say, of ‘modern constitutional democracies’). It is not hard to be a liberal, or to defend one’s liberalism, when those conditions hold. They are already liberalism-favouring, if not liberalism-entailing, conditions. But surely the main question now is different. What we should be saying once – Heaven protect us – those conditions are gone?


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