This post continues the thread from the earlier discussion of the political philosophies of Hobbes, Locke, and von Pufendorf. There we saw that some of the original political philosophers drew a clear delineation between public and private exercise of power. For Hobbes, the sovereign acquired a “moral right” to use force in order to punish. Samuel Freiherr von Pufendorf (a less popular but influential philosopher) noted that punishment was uniquely the province of the state that arose from the duty to rule others and it was only available to sovereigns. And John Locke wrote that private individuals had a right to punish when they existed in a state of nature, but that right was extinguished the moment that they agreed to participate in society.

Today we will move forward in time to some more modern political philosophers.

John Rawls

The concept key to John Rawls’s political philosophy is the “original position.” The original position is a hypothetical scenario where individuals are behind a veil of ignorance, unaware of their own characteristics and social position. From this position, they agree on principles of justice for society, ensuring fairness and equality for all, as they do not know what position they will occupy in that society. Individuals agree to create a society with this background – this situation resembles, and in fact was probably derived from, the social contract theory discussed in Part 1 of this blog series.

Rawls suggested that from this original position, people would or should choose two basic principles to form their social contract:

  • Every citizen is guaranteed a basic amount of liberties that are shared between and compatible with the liberties of all other citizens;
  • When social and economic inequalities are created, they should satisfy two conditions:
    1. The greatest benefit should be enjoyed by the people who have the least, and
    2. Any positive inequality should be derived from or attached to a position that is open and available to all.

In sum, this position has been called the “maximin”, a term borrowed from game theory, in which the goal is to maximize the minimum position. In other words, Rawls suggests that a social contract is valid to the extent that it creates the highest floor possible, so that the least advantaged people in a society are at the highest theoretical level possible.

As an initial matter, Rawls explicitly rejected the notion that private parties should have any power to use force to uphold laws: “Second, political power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.” (Of course, Rawls did understand that individuals and nations had a right to use force in self-defense – the monopoly on force belonging to the government was that force used to add coercive power to its laws rather than force used to protect the integrity of self and state).

The facts of private prisons as instituted in the United States also clearly violate the maximin principle. We know, for example, that the criminal punishment system disproportionately affects people who have less money; and although this is problematic on its own, when it is combined with the fact that already enfranchised people can extract more resources from their incarceration, private prisons become a form of “maximax” – maximizing the resources of the wealthiest segment of the population.

Max Weber

According to Weber, the most legitimate authority in modern societies is based on a system of laws and rules, known as “rational-legal authority”. This authority is derived from a system of rules that are considered legitimate by the population, and it is typically associated with modern bureaucratic institutions.

Weber contrasts “rational-legal authority” with “charismatic authority” – authority wielded by an individual due to his charismatic nature, often seen in emergencies and periods of social upheaval – and “traditional authority” – authority that is based on longstanding traditions, usually associated with patrilinear hereditary regimes such as monarchies.

The state’s authority to incarcerate individuals in modern “Western” societies such as the United States is based on the legal rules and procedures characteristic of a “rational-legal authority”.

In line with the vast majority of political philosophers, Weber also argued that the state maintains a monopoly on the legitimate use of physical force within a given territory and is, therefore, the only entity that has the legitimate authority to use force to maintain order and enforce its laws.

When applied to private prisons, these concepts suggest that the authority of private prisons to incarcerate individuals is fundamentally illegitimate. Private prisons, inherently motivated by profit, operate outside the traditional rational-legal framework of the state. They are not accountable to the same legal standards and oversight as public institutions, potentially undermining the legitimacy of their authority to incarcerate individuals. Additionally, the use of force within private prisons undermines the legitimacy of the state’s monopoly on force, as private entities are given the authority to use force in ways that are not subject to the same legal standards and scrutiny as state institutions.