Consequences Matter More: In Defense of Instrumentalism on Private Versus Public Prisons

Abstract

Alon Harel wants to show that punishment is a kind of symbolic expression that, as a matter of metaphysical necessity, can only be performed by governmental agents. Contrary to Harel, I argue private agents can in fact realize those features he argues only public agents can realize. I also argue that, even if he were right that only public guards and wardens can punish, it’s unclear why we would have an all-things-considered rather than merely a pro tanto/prima facie duty to punish. An instrumentalist can grant Harel that only state employees can punish, but still decide, on instrumental grounds, to reject public punishment in favor of private “schpunishment.”