and one that leaves the door open for a better future: “There may be transition cases where enslavement is better than current practice.” Rawls emphasizes, however, that provisional acceptance of slavery cannot “appeal to the necessity or at least to the great advantage of these servile arrangements for the higher forms of culture . . . the principle of perfection would be rejected in the original position.” 54 C 2012 Blackwell Publishing Ltd.
Private Incarceration: Yoav Peled and Doron Davot 225 In sum, a Rawlsian perspective may provide grounds for supporting private incarceration, at least as a provisional measure, for the following reasons: 1. This issue must not be decided on the basis of one comprehensive doctrine (such as civic republicanism), while ignoring other comprehensive doctrines (such as utilitarianism). 2. The issue cannot be decided solely on the basis of abstract conceptions, such as freedom or human dignity. The decision should consider a whole array of factual matters as well, such as the conditions of incarceration in public prisons, the prisoners’ own preferences, the state’s ability to regulate the private corrections industry, and so on. 3. Given the existing beliefs and preferences of the public regarding public spending, it might be just to privatize prisons, at least for a while, in order to improve the conditions of the prisoners, who are the least free members of society. Rawlsian arguments against private incarceration may thus be limited by Rawls’ commit- ment to individualism, by his anti-perfectionist moral philosophy, and by his theory of justification. III. Civic Republicanism Michael Walzer, “politically . . . a liberal but also what Europeans would call a social demo- crat,” 55 straddles the line between liberalism and civic republicanism and illustrates in his own work the differences between these two perspectives on the question of private incar- ceration. In 1985, as prison privatization was getting under way in the US, Walzer wrote an essay criticizing the new trend. 56 In his essay, submitted later, with small changes, as a brief in support of the plaintiffs in the Israeli prison privatization case, 57 liberal and repub- lican arguments, or arguments from the perspectives of both coercion and corruption, to use Sandel’s terms, were intertwined. Walzer argued that establishing private prisons was wrong because it “exposes the pris- oners to private or corporate purposes, and it sets them at some distance from the protection of the law.” 58 He presented the legitimacy of the law as stemming from a Lockean social contract, complete with tacit consent and the need for an impartial arbiter: When we agree to the laws . . . we accept the proposition that if we ever break the law we ought to be punished. Criminals are punished, then, with their own consent. And if this isn’t active and explicit consent, then it is constructive and tacit: for the criminal has lived under and enjoyed the benefits of the laws, and could have participated in the making of these laws. . . .
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