THE BLOG
10/13/2010 02:26 pm ET | Updated May 25, 2011

Max Weber was Wrong

Private military contractors get called all sorts of things and are categorized in an infinity of ways. But the idea that "American use of privatized force reflects and accomplishes normative and democratic commitments of international and domestic law that would be impossible to replicate through other policy avenues." is new to me.

Yet such is the view ably articulated in a law journal article published earlier this year. The article Private Force / Public Goods by Scott M. Sullivan was published earlier this year in the Connecticut Law Review. Sullivan is an Assistant Professor of Law at the Louisiana State University Law Center.

Professor Sullivan teaches and writes in international law, national security law, and U.S. foreign relations law. In 2008, Sullivan joined Priv-War, an EU-commissioned research consortium assessing the impact of the increasing use of private military companies and security companies in armed conflict.

He makes some interesting arguments that I've not seen before. For example:

Most claims against privatization either prove too much (asserting that harms under their own terms not limited to the private sector) or too little (that harms are easily remedied through standard regulation). As a result, the prevailing critiques fail to address the fundamental structural question of privatizing and outsourcing force.

The perceived harms of private military companies ("PMCs") are overblown. Instead, the institutional structure and commercial characteristics of PMCs reflect little difference from the values reflected in public troops. PMCs, in fact, exhibit characteristics meaningfully associated with proclivity toward legal and regulatory compliance.

He makes some points which have been said before but bear repeating. For example outsourcing national security functions is not a recent phenomenon. It didn't start with Reagan or Bush. It has been going on since Eisenhower. The formation of NASA in 1958 introduced the federal government's first agency in which full-time private contractors ultimately outnumbered federal employees. In the 1960s, the military hired private contractors to train South Vietnamese troops prior to U.S. entrance in the Vietnam War.

One of the intriguing aspects of his article is when he takes on the standard criticism that the use of PMC represents a hollowing out of a state's sovereignty (cue the famous line of the famous German sociologist Max Weber - who said in Politics as a Vocation that something is "a 'state' if and insofar as its administrative staff successfully upholds a claim on the monopoly of the legitimate use of violence in the enforcement of its order."-- that has launched countless theses and dissertations.

Sullivan notes that:

The argument that delegation of governmental services represents a forfeiture of sovereign power (in any degree) conflicts with conventional conceptions of sovereignty. Scholars have long accepted that questions of sovereign control reside within the realm of sovereignty gauged by the process and effectiveness of state decision making rather than the formal executor of those decisions. State national security is not an exception. For example, the complete outsourcing of Japan's national security to the U.S. neither legally divests it of other sovereign powers nor demonstrates any functional inability to reassert sovereign powers (including defense) or effectuate the same goals through other policy points. Just as treaty regimes with reporting requirements and alliances among nations may complicate sovereign rights, the complication is undertaken as part of a presumed state interest in consenting to that exchange.

Prof. Sullivan's conclusion is that that the momentum of growth in the market for private force reflects, more than anything else, the democratic preferences of Western countries' citizenry and a commitment to reducing the human cost of war consistent with international legal norms.

While I do not agree with all the arguments or conclusions Prof Sullivan makes, his article is a useful critique of some of the standard and unsupported criticisms of PMC.