Binaries are central in shaping our thinking. This is particularly the case in the field of law. For example, lawyers perceive the world through prevailing legal categories and categorical contradictions. Their entire professional training is directed to inculcate them with categories and contradictory binaries: Guilty/Not-Guilty; Minor/Senior; Employee/Contractor. Among these binaries, the division between the private and public spheres is particularly commanding and far-reaching.
The division between public and private is mainly ideological, based on the extent to which we acknowledge the state’s reach into what is traditionally regarded as the private or ‘non-state’ sphere. In the hands of lawyers, the question is commonly translated into normative terms, inquiring where the line between state and non-state actors and actions should be drawn. Inevitably, then, each answer given to the question relies on distinct ideological visions of the raison d’être of society or the state and predispositions towards their regulation. Each answer supports a separate menu of regulatory schemes rooted in particular ideological preferences and bias.
From this perspective, it is clear why many cling to the public/private division, either out of fear of the state’s power or aversion to its meddling in the distribution of wealth. This position harkens back to so-called ‘classical liberalism’, purportedly in the name of personal autonomy. But this classical position has been under sustained attack for its shaky historical grounds and self-contradictory foundations. Indeed, the rise of the welfare state and increased regulation has complicated any effort to neatly distinguish the state from the individual. As a result, the past century has seen the two spheres come closer with a diversification in their modes of interaction. At the same time, the binary still remains the law’s point of departure.
The future of prison labour
This brings us to the future of prison labour and the role played by the public/private division in its contemporary regulation. Prisons and the institution of prison labour are fascinating sites to re-engage with the public/private divide. To begin with, the modern prison is a hybrid of private-public institutions by its very nature. After all, all prisons (public or privatized) are designated as a prisoner’s ‘home’ for the duration of their imprisonment. From a classic liberal perspective, the public/private distinction is commonly translated into the opposition between the (private) market and family, versus the (public) state. Adopting this view, the private/public nature of the prison is clear: the detention of prisoners is organized and often facilitated by the public state, yet the nature of the prison as the inmates’ home resembles the quintessentially private institution of the family. Furthermore, prison labour is at least analogous (if not identical) to market activity. Accordingly, the cohabitation of the private/public spheres appears inescapable in the business of prison labour.
The picture is further complicated when considering contemporary prison practices, and two major and recent developments in particular: the rise in the involvement of private companies in the prison labour industry, and the proliferation of market ideology into the public sphere. These changes profoundly challenge the binary division between ‘public’ and ‘private’, blurring forms of accountability in the business of prison labour.
The rise in the private sector’s involvement in various modules of prison labour both outside and inside prisons, is best demonstrated by changes over the past few decades in leading industrial countries. Overwhelming evidence illustrates how the private sector has made inroads into prisons, taking various hybrid forms. Since the debate about prisons is captivated by the privatization of the prison itself, rising fusions of prison labour are often overlooked. Yet such forms of labour proliferate, regardless of the identity of the owner of the prison.
The second development is even more pervasive. It resonates with the general, global, comparative trend of introducing market logic into the public sphere, a sphere which has traditionally been viewed as alien to it. In our context, modern prison labour’s tendency to subvert the public/private division has been exacerbated in the past few centuries with the ascendency of market-economy ideology. Evidence generally suggests that in industrialized countries prison labour is exposed to the full force of competitive pressures even within public prisons. As a result, prison labour systems have de facto adopted market-based logic as their primary credo and modus operandi as they endorse profitability as the paramount measure of success.
Countries and international organizations have struggled over how to react to these changes and the obfuscation of the private/public divide within prison labour industries, with consequences for its contemporary and future regulation. In other words, the field is in disarray, reflecting ideological differences related to neo-liberal versus social justice visions of economic regulation.
To this day, the regulation of prison labour remains deeply influenced by the public/private divide. The International Labour Organization (ILO), for example, has repeatedly held that private labour-providers remain subject to demanding requirements when facilitating prison labour, yet public work-providers are given carte blanch. The American Convention on Human Rights (1969) similarly maintains a dichotomous private/public approach. The latter separatist approach, which is averse to prisoners’ work for private companies, does allow for prison labour for private entities but only under strict conditions; conditions which render the whole operation more expensive, allegedly undercutting efforts to provide prisoners with much-needed employment opportunities.
On the other hand, while dominant, the ILO approach is not universal in international labour instruments. The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on the Protection of Human Rights (ECHR), for example, do not prohibit prisoners’ working for private enterprises. Moreover, the 2006 European Prison Rules (EPR) provide that “work for prisoners shall be provided by the prison authorities, either on their own or in co-operation with private contractors, inside or outside prison.” (Rule 26 (9)). The latter instruments reflect – and seem to welcome – the realization that prisoners work for the private sector, inside and outside prisons, both in privatized as well as in public prisons.
The discrepancy between the separatist approach of the ILO (and similarly inclined organisations) and the realities on the ground is troubling. Yet, the flowering of hybrid prison labour poses a challenge to us all. We are all committed, one way or another, to the public/private dichotomy, which current practices of prison labour so profoundly contest. Indeed, these pervasive practices invite us to question whether the public and private spheres have become – or have always-already been – akin to inseparable Siamese twins, or at least in the case of contemporary Western prison labour.
Labour done in the constraining circumstances of incarceration is forced on prisoners whose genuine consent and fair labour standards are often not truly sought. Yet, this presupposes that genuine consent and a suitable range of labour standards could theoretically be achieved even behind prison walls. It could be argued that the best way to transcend the public/private divide is by banning forced prison labour altogether, whether performed in private, public, or mixed settings. It may seem a rather radical regulatory strategy and perhaps unrealistic today. Nevertheless, it could be set as our target for the future. The UN’s path-breaking 2015 reform of the Mandala Rules, which removed the requirement for all prisoners to work, may suggest that this is not inconceivable aspiration for the future of prison labour. Indeed, prisoners’ rights demand it of us.
Faina Milman-Sivan is an associate professor at the Law Faculty at the University of Haifa. Her research and publications focus on critical analysis of the international labor law regime, freedom of association and prison labor.
Yair Sagy is a Senior Lecturer at the University of Haifa Faculty of Law, Israel. He specializes in legal history, public law, theories of regulation, the administration of courts, courts as organizations, and the regulation of prison labor.