Band 5, Heft 2 - Private Power and Human Rights

The essay concerns the manner private power threatens the proper democratic role of the press or mass media. But first, Part I examines two preliminary conceptual matters involved in locating this discussion in the context of a conference on private power as a threat to human rights: 1) the relation of human rights to private power in general. This relation is complicated due to fact that human rights can themselves be seen as the assertion of private power against government or against collective power while, depending on how conceptualized, human rights can be improperly threatened by private power even while private power operates in a generally lawful manner; 2) involves the relation of press freedom and human rights. Here I argue that human rights are ill-conceived if offered as embodying any particular right in respect to the press—more specifically, I argue that a free press is not a human right—but argue instead that an ideal media order that is embodied in a broad conception of free press provides the soil in which human rights can flourish and the armor that offers them protection. Both government power and private power are necessary for and constitute threats to these supportive roles of a free press.Political-legal theory—or in constitutional democracies, possibly constitutional theory—should offer some guide to how the tightrope between government as threat and government as source of protection against private threats ought to be walked. That is, the goal is to find both proper limits on government power and proper empowerment of government to respond to private threats. Part II examines the variety of private threats to the proper role of the press. It focuses on two forms of threats: first, market failures that can be expected in relatively normal functioning of the market; second, problems related to the purposeful use of concentrated economic power. Responsive policies are multiple—no magic bullet but varying different governmental (as well as private) responses are appropriate. However, Part III illustrates this point by considering only two types of governmental policies, both of which I have recently been involved in advocating: first, government promotion of dispersal of concentrated power by means of ownership rules and policies; second, tax subsidies in the form of tax credits for a significant portion of journalists salaries as a means to correct for underproduction of journalism on theory that this journalism generally produces significant positive externalities.

Modern advertisements contain little information and expose few arguments. They rarely describe the product and its usage or compare it to similar products. Yet, advertisements convey many messages—they attach meaning to products, suggest values, and spread a particular view of life. Advertisements create a failure in the democratic process; through advertising, commercial corporations intervene in the democratic discourse. Citizens are intensively exposed to the consumerist worldview while alternative points of view are scarcely presented in the communicative sphere.But commercial corporations are not legitimate participants in the public discourse in a democracy since they do not represent the political support of citizens. Presently, courts grant advertisements freedom of speech protection based on the importance of providing information for viewers. But by doing this, courts ignore the value suggesting messages prevalent in modern advertisements.For many years the law in the domain of campaign finance has restricted the speech of corporations in order to prevent distortion of the political discourse prior to elections. Similarly, we should allow the State to intervene to repair the failure in the public discourse created by advertisements. The law regarding informative messages and value-suggesting messages contained in advertisements should treat each separately, and advertisers should not be permitted to convey messages of the latter.

The relationship between private and state power in a pluralist liberal democracy raises complex issues that this article explores, focusing on control over children’s education. While rights are the default vocabulary of liberal theory and practice, they do not suffice to characterize either the claims of children or the responsibilities of adults. While many theorists have followed Joel Feinberg in proposing that children have the right to an “open future,” there are good reasons to doubt that they do. Within limits, parents’ convictions appropriately enter into the content of their children’s education and instruction, and the integrity of civil associations supplements (without supplanting) the discourse of individual rights. John Stuart Mill points toward a triadic understanding of educational authority that coordinates three sets of interests—the developmental interests of children, the civil interests of the state, and the expressive interests of parents. To explicate expressive interests, the Article lays out a theory of “expressive liberty”—the value of being able to live in a manner consistent with our deepest understanding of what gives meaning and value to our lives. While raising children is an important aspect of parents’ expressive liberty, it is limited by the separateness of each child’s existence, the fact of human diversity, and the requisites of civil order. Nonetheless, in societies characterized by a deep diversity of moral and religious views, the requirements of both practicality and legitimacy point toward a social order that offers maximum feasible scope for different ways of life to find expression in the choices of parents and civil associations. The Article explores this thesis with particular reference to U.S. history and law.

This Article looks at aspects of the relationship between privatization in education and educational justice, examining these relationships from normative and empirical points of view. It explores different meanings of privatization in the realm of education and assesses underlying reasons for certain aspects of privatization in light of two educational justice: the adequacy approach and the fair equality of opportunity approach. The Article argues that given the competitive nature of the sphere of education, considerations of fairness, as well as utility, solidarity, and democracy supply strong reasons for rejecting various arguments that support the existence of private schools. In the last thirty years, vouchers and school choice schemes have constituted the main modes of privatization, importing market mechanisms and the logic of competition into the realm of education. Empirical evidence suggests that vouchers and school choice schemes have not fulfilled the promise of reducing educational inequalities, partly due to the political, social, economic and ideological background in which they were implemented. The introduction of competition in the realm of education has created a reality that encourages schools to prefer “low cost” students—students from middle and upper classes families—over “high cost” disadvantaged students—who come mainly from the lower class, and students with special needs. Not only have marketization and privatization changed the way that society distributes educational services, they promote a social ethos that emphasizes self-interest over the advancement of the public good and erodes democratic public forums in which collective societal decisions should be resolved.

This Article adopts a comparative perspective on the use of privatization by governments in the welfare context. It begins by reviewing the extent of welfare privatization in the US, the UK, and Ireland, considering notable examples such as privatized welfare-to-work schemes and residential care. For example, the question of privatized welfare accommodation in the UK has resulted in significant litigation and a major judgment on privatization handed down by the House of Lords in 2007. The Article turns to a consideration of the challenges that arise from using privatization in the welfare context from the perspective of i) accountability and ii) human rights. The ways in which the different jurisdictions respond to the challenges of welfare privatization—and the lessons to be learned from those responses—are then assessed. Overall, it is argued that judicial or doctrinal responses to privatization are often inadequate and the extent to which there exist alternative mechanisms to ensure accountability and human rights protection in the context of welfare privatization are explored.

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.

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.