Security is often a non-excludable public good. On the one hand, it benefits the people who buy it; on the other, it also benefits those who live near the people who buy it. It benefits those neighbors even if they refuse to share in the cost of the security themselves. Security also entails economies of scale. In part because of the positive externalities involved, people economize when they purchase security together. Rather than each pay to protect him- or herself, they save resources if they purchase their security together.

Privacy seems to belong to the past. The dating website OkCupid asks its users whether they occasionally use illegal drugs, selling that information in real time to marketers. Commercial data brokers hold thousands of data points about individuals. The problem concerns not only apps and websites but also the “Internet of Things” (IoT) that increasingly surrounds us. In The Age of Surveillance Capitalism, Shoshana Zuboff cites the example of a bed that uses “smart technology” to capture data on “heart rate, breathing and movement,” allegedly to improve the quality of sleep.

Proponents of privatization tend to rest their case on a strikingly simple line of argument. Compared to the mighty private sector, they maintain, the state is hopelessly inefficient at providing goods and services. Trains, hospitals, schools, and even prisons perform better when private corporations take charge, energized by the dynamic logic of competition, rather than the rigid, monopolistic state. We all do better by relying on the private sector whenever possible, they conclude, including for the provision of goods and services that were traditionally viewed as the state’s exclusive responsibility.

Resting one’s entire case on such a straightforward argument can seem unimaginative in some contexts, but here it mostly denotes confidence in the strength of the underlying considerations. And the confidence is understandable. If the state is inefficient compared to the private sector, then privatization promises the same quality of services at a lower cost – or, alternatively, a higher quality at the same cost.

Post-national plurality not only puts items on the global map of law that had no place in the black-box model of Legal Positivism: instances of non-state law, such as transnational, indigenous, and religious law. Post-national law also fundamentally alters the relations among instances of law, and annuls the self-sufficiency and reciprocal closure of the black boxes. The black-box model depicted the plurality of law as simple diversity, as mere coexistence of state legal orders, without any hint of either dialogical or conflictual relations. In contrast, post-national plurality invites us to conceive of the global constellation of law as interlegality where instances of law overlap and communicate in various modes.

Privatization – the outsourcing of public responsibilities to private actors – is a pervasive phenomenon across the world. Welfare and healthcare delivery, military defense and prisons management are only some of the functions that governments increasingly contract out to private actors.

In this chapter, I will argue that even if privatization could facilitate the achievement of socially desirable goals, there would still be non-instrumental reasons to object to it (or, at least, to many of its instances). Importantly, my argument is meant to apply also to cases where the privatized function does not involve the direct exercise of force and where the private actor is a nonprofit organization, as opposed to a for-profit firm. Political philosophers have recently developed several powerful non-instrumental objections to privatization.

This is an essay in legal theory, not a doctoral thesis. I have tried to keep the footnotes to a minimum and shunned textual footnotes. The essay is, of course, based on extensive reading. In addition to the sources of direct quotations, I have wanted to indicate merely the literature I have most profited from. Yet I have not considered it necessary to identify the sources of all household premises of legal theory and sociology, say, the views and insights of classics such as Hobbes, Bentham, and John Austin or Kant and Weber.

The debate over the privatization of government services usually concerns practical considerations like cost and quality. This is not to say that moral questions are absent: in the current controversy over private prisons, for instance, even a supposedly “practical” factor like the “quality” of a prison includes many morally relevant features – like whether private prison firms are more likely to overcrowd their prisons or skimp on necessities like medical care, whether private correctional officers are more likely to abuse prisoners, and whether inter-inmate violence is more likely at a private prison.

Law never works in isolation but always in conjunction with other law. This holds for all legal practices, and for all legal speech acts. Laws and court decisions include explicit or implicit references to other laws and decisions, and to other legal norms than only those explicitly applied to the case at hand. Furthermore, surface-level law is not even intelligible without the filter provided by sub-surface layers. The normative legal order possesses an order which makes it into a unity and which provides it with its identity. The question can only be how order, unity, and identity should be conceived of. Here my focus is on order and unity, while below, in discussing the plurality of law in Part III, it is on unity and identity. Yet the link between order, unity, and identity should be kept constantly in mind.

In this essay, my aspiration has been to present a legal-theoretical recapitulation of law; a reflexion theory of law, as Luhmann put it. I have resorted to two main methodological devices, which also imply perspectival choices. First, I have opted for discussing law in the framework of an ideal-typical modern state legal regime. The choice of modern state law as the perspectival premise has been motivated by its high grade of differentiation. This facilitates elaborating analytical distinctions which can then be applied to exploring other types of law too. In modern state law, legal norms have become detached from sociolegal practices and, due to their objectivation and dissemination in writing, embarked on a trajectory of their own, although never losing contact with sociolegal practices as law’s social modes of existence. Parallel to the detachment of norms from practices, second-order, specialised, legal practices have emerged. First-order sociolegal practices remain the chief locus of law’s realisation, while second-order practices monitor and react to disturbances in that realisation, and assume the tasks of (re)producing the normative legal order. The differentiation within sociolegal practices finds its parallel in the normative dimension in the division of primary and secondary rules, addressing, respectively, first- and second-order sociolegal practices. Differentiation of specialised second-order legal practices enhances the role of legal professionals and the importance for those practices of professional legal Vorverständnis, informed by the prevailing legal culture. Legal culture displays normative, conceptual, and methodological components. It also includes a legal language where legal concepts function as the vocabulary and patterns of legal argumentation and reasoning as the grammar.

The relationship between corruption and privatization is a complex one. In some cases, they are conceived as polar opposites, with privatization touted as a strategy to combat corruption. In others, they are synonyms: privatization is perceived as a product of or a mechanism to enable corruption. In this chapter, I argue that there are particular circumstances in which each of these hypotheses may prevail, suggesting that the answer to the question “who gains from privatization?” is largely dependent on context. An accurate picture needs to consider the multiple phases of the privatization process, the unique institutional framework in which decisions are made, and the particularities of the sector(s) involved. To develop this argument, I organize the vast literature on the political economy of privatization according to three key moments: the decision to privatize (before privatization), the privatization process (during privatization), and the dynamics governing the privatized structures (after privatization).

Among legal theorists, as well as sociologists and historians of law, broad agreement prevails that differentiation of practices specialised in particular legal functions has been decisive for the emergence of modern law, if not law in general. Particular significance has been accorded to detachment of the judicial function: complementing primary realisation of law in first-order sociolegal practices and private forms of enforcement, such as blood feud, with secondary realisation through judicial practices and accompanying coercive execution. Kelsen and Hart, the Masters of Legal Positivism, tended to treat positive law exclusively as a normative legal order and largely ignored analyzing first- or second-order sociolegal practices. However, in their brief sketches of the transition from a primitive regime of rules to state law (Kelsen) or a developed legal system (Hart), differentiation of specialised legal practices holds centre stage.

Social practices are inherently normative; no non-normative social practices exist. Yet, the extension and intensity of inherent normativity varies. The primary interlinking factor of dispersed practices is a common understanding of the criteria that acting must meet in order to be treated as a token of a particular practice; as ‘X-ing’. Such thin, conceptual, normativity is not specific to social practices. All our conceptual thinking and identifying of entities and events, as well as arranging the objective, social and subjective world, involves such normativity.