Outsourcing Violence?

This Article develops a theory of “inherently governmental functions” and argues that these functions concern powers designed to execute or implement fundamental state decisions—e.g., the decision to criminalize certain behavior, the decision to inflict a certain sanction, or to the decision to initiate or end a war. While most theorists agree that fundamental state decisions of the types described above ought only to be made by the State, some believe that the power to execute or implement these decisions can be transferred to private entities. Thus, for instance, theorists maintain that while only the State can criminalize behavior, private prisons can execute the punishment; while only the State can declare a war, mercenaries can carry it out, etc. This Article disputes this claim. By transferring powers of “execution” or “implementation” of fundamental state decisions to private entities, the State severs the link between its fundamental societal decisions and the actions designed to execute or implement these decisions. Private entities that imprison people or soldiers hired to fight a war ought to be regarded not merely as executing or implementing public decisions. Instead, they ought to be regarded as private entities whose own private judgments concerning the justness of the sanctions they inflict or the justifiability of the wars they fight are prerequisite for the performance of their jobs. The contribution to the genesis of the action of the private entity made by the court’s decision to inflict a sanction or the State’s decision to go to war is, so to speak, superseded by the individual’s own judgment. The Article further argues that being punished by another private individual—rather than by the State—infringes upon one’s dignity as it subjects the will of one person to the will of another. The justifiability of the exertion of violence hinges upon the agent performing it. Hence, I maintain that it is impermissible on the part of the State to privatize the execution or implementation of some fundamental societal decisions.