Human dignity in the context of prison privatization

Author:Ivica Pavic
Position:Faculty of Law, Osijek, Croatia
Studies and Comments
Human dignity in the context of prison privatization
Ph.D. student Ivica PAVIĆ
This paper discusses the legal nature of human dignity as well as whether and in
what manner it merits consideration in the prison privatization decision-making process. The
first chapter grasps the complexity of the legal concept of human dignity by analyzing how it
is approached - its status, roles and content - in notable international and domestic
regulations, soft law, sociological and legal theories. Th e second chapter discusses the
qualitative characteristics of the decision to privatize prison s and argues that it is primarily
legal (constitutional) in nature, the importance of agent identity a nd its effect on conceptual
permissibility of prison privatization based on the rationale theory of conceptual limitation
to privatizing prisons by Dorfman and Harel, and finally, presents the institutional and
human rights aspects of prison p rivatization as discussed by Ba rak-Erez and Feeley
following the 2009 constitutional review decision of the Supreme Court of the State of Israel
which held prison privatization to be unconstitutional. The conclusion attempts to formulate
an acceptable legal definition of human dignity, gives a summary of author's opinions, and
assesses the influence of presented argumentation on recommendation of prison privatization
as long -term or sho rt-term so lution for add ressing human righ ts vio lations with
overcrowding as underlying cause.
Keywords: prison, privatization, human dignity, identity, core.
JEL Classification: K14, K15, K23, K38
1. Introduction
Prison sentence execution (imprisonment) is one of the most controversial
state prerogatives since it involves specific limitations to human rights, and can also
include various forms of (actual) coercion.
This paper will try to focus specifically on if and how human dignity of
prisoners (or perhaps the society as a whole) is affected by prison privatization
analyzed from the perspective of the decision whether to privatize prisons.
In order to attempt to answer this question, the paper will first give an
overview of the most likely answers to the following two further questions:
1. What is human dignity, what are its status, possible roles and content?, and
Ivica Pavić - Faculty of Law, Osijek, Croatia,
Juridical Tribune Volume 8, Issue 1, March 2018 7
2. Is the decision to privatize prisons a political or a legal decision, or perhaps
a combination of the two, and what would be the consequences of each of
those points of view?
Why did I point out exactly these two further questions?
The first further question is a direct consequence of the topic of this paper -
it would not be prudent discussing possible violations to human dignity without at
least roughly grasping just what it is - is it a value, a right, a standard, or something
else? The paper attempts to answer this question by analyzing human dignity
through: a) examples of significant international and national acts and soft law
documents mentioning human dignity, b) the way it is described in the Croatian
Legal Lexicon as the starting point for further theoretical analysis, and c)
sociological and legal theories on human dignity.
As for the importance and necessity of the second further question - should
we negate the legal aspect of the decision to privatize, we negate the possiblity that
private imprisonment could pose a violation of human dignity because we would
also negate the possibility of judicial review of the decision to privatize. Thus, the
first part of the chapter of this paper dedicated to answering this question will begin
with an introduction to the importance of characterizing the decision to privatize
prisons. The second part of the chapter will focus on the importance of identity of
prison sentence executioner (agent identity) in the context of the aims of prison
sentence. In the following part, I will discuss the differences in mindsets of a public
versus a private prison employee when approaching prison sentence exeuction and
whether or not one mindset can be applied to the other sector (public vs private),
largely based on the theoretical discussion by Dorfman and Harel. Finally, the last
part of the chapter will present an overview of Barak-Erez's two complementary
aspects of prison sentencing - institutional aspect and human rights aspect - as well
as Feeley's criticism that followed, all in the context of the Israeli Supreme Court
(sitting as High Court of Justice) case decision of 2009 in which prison privatization
in Israel was held unconstitutional.
2. In search of the definition, status and content of human dignity
2.1 Legal documents and human dignity
International acts and soft law documents give little to no contribution in
determining what human dignity is, its content or its status (roles). Vast majority, if
not all of them, only briefly mention it or refer to it either in preambles (more often
the case) or in normative sections of those acts, without describing what it is or what
other source to use as an interpretational guide. In those documents, human dignity
is either mentioned as something to which specific relations regulated by the act
should always stride, or it is expressly guaranteed, but in a similar sense.
Examples of such practice would be: a) the Preamble and Articles 1 and 22
of the 1948 Universal Declaration of Human Rights, b) the Preamble of the 1966
International Covenant on Civil and Political Rights, c) the Preamble and Article 1

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