Must States Do It Themselves? A Rights-Based Theory of Delegating State Coercion

Abstract

Are there functions that a state must do for itself instead of relying on others to perform on its behalf? Some argue that suppressing private violence and enforcing the law are powers that only the state may exercise, meaning the state is responsible not only for ensuring that they are discharged but for discharging them itself. In this article, I challenge the do-it-yourself principle that animates much of the recent philosophical literature on privatization. In its place, I defend a rights-based theory of delegated state power. A state’s consistent failure to adequately protect rights is a reason for the state to voluntarily delegate powers to a third party that is better placed to use them to protect rights. This account grounds the legitimacy of delegation on the protection of rights rather than on state consent. I illustrate the theory by showing how it could justify delegating policing and penal powers to charter cities, semiautonomous cities run by a guarantor country or private developer. I consider the conditions under which a charter city developer is likely to adequately safeguard the rights of its residents. Finally, I argue that neither sovereignty nor democratic legitimacy prohibits the state from delegating its coercive powers. When a state is incapable of protecting rights, delegation is not a betrayal of sovereignty and democracy but a step toward their realization.