2017 Jotwell: J. Things We Like [1] (2017)

handle is hein.journals/jotwell2017 and id is 1 raw text is: 



The Zeal of Our Age
http://juris.jotwell.com/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.











W.A.  Edmundson


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:

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