Prisoners for Hire: Towards a Normative Justification of the ILO's Prohibition of Private Forced Prisoner Labor
64 Pages Posted: 11 Apr 2014
Date Written: March 1, 2013
Abstract
This article addresses the near absence of normative discussion of private forced prison labor in the legal literature, particularly in international law. It attempts to fill this vacuum, to some extent, by presenting a novel normative, non-instrumental justification for the prohibition of forced private prisoner labor enshrined in the ILO’s 1930 Forced Labour Convention (No. 29). While the ILO’s stance is criticized today in light of the proliferation of private prisons and the private prison industry in industrial states, the article defends the requirement that prisoner labor for private entities be voluntary and performed under market conditions. It draws on the prisoner labor regulation scheme in Israel, and, in particular, on the Israel Supreme Court’s reasoning in a landmark 2009 decision on prison privatization. In an unprecedented move, the Court ruled private prisons to be unconstitutional partly due to the symbolic harm caused by incarceration in a private prison to prisoners’ right to human dignity and autonomy. The article develops an analogous argument in the context of private forced prisoner labor, invoking the civic republican and libertarian normative traditions. It is argued that both procedural and substantive understandings of exploitation support the assertion that involuntary for-profit prisoner labor should, from a moral standpoint, be considered exploitative.
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