Can Anyone Implement the Law? The Discourse and Practice of Externalizing Legal Authority

DOI10.1177/0095399721995459
Date01 October 2021
Published date01 October 2021
Subject MatterArticles
https://doi.org/10.1177/0095399721995459
Administration & Society
2021, Vol. 53(9) 1315 –1336
© The Author(s) 2021
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DOI: 10.1177/0095399721995459
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Article
Can Anyone Implement
the Law? The Discourse
and Practice of
Externalizing
Legal Authority
Ulrika Mörth1 and Jon Pierre2
Abstract
Allowing private companies to de facto exercise legal authority is becoming
increasingly common in several countries. Externalizing legal authority is
sustained by a discourse replacing a conventional institutional approach
to law enforcement with a functional approach where the agent is less
important than efficiency and expected outcomes. Drawing on two brief
case studies in Sweden—automobile inspections and reviews of international
financial transactions—we argue that legal authority is transferred to for-
profit actors with only a minimum of safeguards and accountability. For-
profit actors are legal authority insiders but outsiders in the democratic
chain of accountability.
Keywords
externalizing legal authority, functional agent, legality, implementation
Introduction
The basic research questions addressed in this article are focused on admin-
istrative reform externalizing public authority to for-private organizations.
We argue that unlike contracting out public service delivery, externalizing
1Stockholm University, Sweden
2Gothenburg University, Sweden
Corresponding Author:
Jon Pierre, Department of Political Science, Gothenburg University, P.O. Box 711,
405 30 Gothenburg, Sweden.
Email: jon.pierre@pol.gu.se
995459AASXXX10.1177/0095399721995459Administration & SocietyMörth and Pierre
research-article2021
1316 Administration & Society 53(9)
public authority has more profound ramifications as it compromises the
state’s monopoly of coercive power. Against that backdrop, what have been
the drivers of this reform and what have been the political and discursive
justifications for externalizing public authority?
Even a casual observer of public administration and law enforcement
would probably agree that exercising legal authority is the undisputed pur-
view of government. Yet, when airline staff ask to see our travel documents,
it is not simply to confirm our identity but also to make sure that we will be
allowed into the country we are heading to; or when we make a cash deposit
in a bank and the clerk makes discrete enquiries to ascertain that this is not a
case of money laundering; or, when we take our car to a private shop for the
annual automobile inspection, we are, in fact, subject to legal authority exer-
cised by a private, for-profit organization.
These are examples of externalized legal authority. Does this matter?
Why is this something we should take note of? We associate the use of
coercive power with the state as these powers must be exercised under
strict responsibility and accountability (Bovens, 2007). As Max Weber
(1946) put it, “a state is a human community that (successfully) claims the
monopoly of the legitimate use of physical force within a given territory”
(p. 78, italics in original). Although automobile inspections rarely result
in an exercise of physical force, they invariably include the exercise of
legal authority. Such authority, as Weber (1946, p. 79) points out, is exer-
cised “by virtue of the belief in the validity of legal statute and functional
‘competence’ based on rationally created rules” . . . “This is domination
as exercised by the modern ‘servant of the state’ and by all those bearers
of power who in this respect resemble him.” Given the powerful argument
why legal, coercive authority should be the monopoly of the state, the
justification for any delegation of that authority to private actors becomes
a matter of critical concern. If the legitimacy of legal authority stems
from the circumstance that it is derived from the authority of the state,
how can a delegation of that authority to societal actors be legitimized
and justified?
In this article, we elaborate and address precisely that question. We study
the justifications and legitimations of the marketization of legal authority and
the accountability issues associated with such reform. We argue that the con-
ventional institutional approach to exercising public authority, where such
authority is embedded in and derived from public, accountable institutions, is
increasingly supplemented or even replaced by a functional approach where
institutional ownership is seen as secondary to functional efficiency. Private
actors have for decades delivered public services across a wide range of pol-
icy areas. Extending such delegation to also include legal authority-making

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