Many of Our Legal Norms Are Workarounds for a Government We Cannot Control

Ask why we do not let private companies run the police, the prisons, or the army, and you will get an answer about accountability. Companies answer to shareholders; the state answers to the public; force should answer to the public. It is a good answer and I accept it. But I want to look at what it quietly assumes, because the assumption is doing more work than the principle.

The Hidden Premise

The argument says: the state is accountable to us and the company is not, so give the guns to the state. Notice that this is a comparison of two small quantities. Nobody who makes it believes the public actually controls the police. What they believe is that the public has some control over the state, through elections and courts and the press, and no control over a corporation that does not even sell to the public directly. A little is better than none, so the little wins.

The norm is not built on the strength of our control over government. It is built on the weakness of our control over business, and on the recognition that the government is the only thing we have even a slight grip on.

Once you see that, the same shape appears everywhere in law and custom. We prefer public schools not because the state educates well, but because we distrust what a company would do with children we cannot supervise. We regulate utilities as monopolies rather than trusting the market, because we know the market for water will not discipline anyone. We write labour rights into constitutions because we do not believe an ordinary legislature would hold them against employer pressure. Each of these is a rule that makes sense only if you take for granted that representative government cannot control business interests and that, in practice, the control runs the other way.

The Premise Is True

This is not a complaint about the norms. They are sensible responses to a real situation. Representative government cannot control business interests; the industries it supposedly regulates fund its campaigns, staff its agencies, and outlast every administration. Under those conditions, hoarding the dangerous functions inside the one institution we have a weak grip on is the right move, and the people who built these norms were wise to build them.

But a norm that is a workaround for a weakness should be recognised as one. It is not a principle about how force or education or infrastructure must be organised. It is a compromise adopted because the better options were not available.

What Changes When the Government Is Strong

Suppose the system of government were one that could actually curb business interests, because the decisions were taken by a body too large to capture and with no career to protect. That is what direct democracy at the highest level would be. It is a much stronger system than representation, not in the sense of having more police, but in the sense of being able to impose its will on a corporation without that corporation having any purchase on the decision.

Under such a system, a great many of these norms lose their premise.

The question of who runs the prisons becomes a question about competence and cost, because whoever runs them, public or private, is answerable to a public that can actually change the arrangement. The reflexive preference for public provision of everything sensitive becomes negotiable, because the reason for it, that the state was the only thing we could reach, no longer applies. Labour rights would not need to be canonised out of the legislature's reach, because the legislature would be the public. Some of the old conclusions would survive on their merits. Others would not, and we would find that out.

Why This Matters Now

I raise this because the norms are usually argued about as if they were first principles. Liberals defend public provision as a moral commitment; libertarians attack it as an ideological one. Both are missing that the arrangement was a hedge against a specific defect, and that the honest question is whether the defect is being fixed.

A rule that exists because we cannot control our government should not be treated as sacred. It should be treated as a symptom. The cure is not to hand the police to a company. It is to build a government we can control, and then to revisit everything we did because we could not.