The Probability Broach, chapter 10
Our heroes fought off a gang of thugs that attacked them in the night, and they’ve captured one of the assailants alive.
Win Bear is all in favor of torturing the prisoner (or at least scaring him into believing he’ll be tortured) to force him to talk. But his friends from the North American Confederacy say that’s not how it works there:
“What the hell do you mean? This guy and his friends rough you and Forsyth up, and now I can’t even bend him a little? We’d know how to take care of him back home!” I began describing the Spanish Inquisition, the Iron Maiden, certain North Korean variations. I was just warming up the hot pincers when Ed worked himself in between the prisoner and me.
“Look, Win, we’ll do this my way. I’ve just called Civil Liberties Association—”
“Huh?”
“What would you prefer, a lynching? He’s got rights, my friend, the same rights you’ll want, if you’re ever accused. The CLA or some other professionally neutral organization takes care of everything. They’ll call his security company, his relatives, friends—”
… “And what do they do, send him to the country club?”
Ed looked exasperated. “He’ll spend the night in custody, just as I might, under similar circumstances, wind up under Professional Protectives’ supervision. No, they won’t let him go—not the way they’re bonded!”
“Y’gotta admit, Eddie,” Lucy butted in again, “the accommodations’re pretty accommodatin’. Shucks, the guest pays for ’em—and recovers with interest if he’s proven innocent.”
On the very next page, L. Neil Smith says “there aren’t any real prisons” in the North American Confederacy. But this is obviously false, and his own writing contradicts it. There are prisons, or at least jails, in this society. It’s just that they’re run by private companies, rather than administered by the government.
There are two big problems with this, both of which L. Neil Smith is blissfully ignorant of. Let’s examine them one at a time.
The first one is that, because this is an anarcho-capitalist society, there are no police, but there are private security companies that perform the same “policing” function. According to Smith, these companies cooperate with each other. I hire my security firm to protect me from criminals, but if I’m accused of a crime, they’re also responsible for holding me in custody until I get a trial.
This would never work. Take a moment to think about the incentives.
Is my security firm going to imprison or punish me, their paying customer, merely on the say-so of a person who isn’t their customer? Obviously not.
Even if a security company was rigorously fair and treated everyone impartially, the race to the bottom of capitalist competition would guarantee that company would go out of business. Everyone would drop them and switch to a different security company that promised favorable treatment to its subscribers. (Imagine the commercials: “Bob’s Discount Security—Where your first felony is free!”)
Before long, these security companies would be little more than protection rackets, ensuring that their customers have impunity for any crimes they commit against outsiders. If you mugged or pistol-whipped someone and they made a complaint against you, your security company would check that your dues were paid up, then announce that in their professional judgment, you’re 100% innocent and are free to go about your day.
Meanwhile, if two customers of the same firm got into a dispute, it’s obvious what would happen: whoever pays more would get the verdict they wanted. It would be justice for sale to the highest bidder, which is what you should expect in a society where everything is driven by money and profit incentives.
These problems would be even more acute when it comes to the people who own these security companies, as I’ve pointed out before. Are private cops going to arrest the person who pays their salary? Of course not.
In this society, the CEOs and top investors of security firms would literally be above the law. They’d be in charge of private armies that answer only to them, like mafia dons or feudal lords in the days of old. Needless to say, TPB never depicts the extremely foreseeable abuses that would arise from this arrangement.
But let’s set this aside and say for the sake of argument that it works the way Smith insists it would. Let’s say I’m accused of a crime, I’m in arrears to my security firm, and they decide to lock me up to send a message about the consequences of not paying your bill.
The problem is that, once a suspect is in custody, the incentives flip the other way.
As Lucy said, a prisoner in this society has to pay for their own imprisonment. (What if you can’t afford it? Do you just starve to death in jail? Better hope that trial is speedy!)
But if they’re found innocent, they can get that money back. This creates yet another massive conflict of interest: once you’ve been detained, private prison companies have a strong incentive to ensure you’re found guilty—because otherwise, they have to eat the costs of your room and board.
If this is also the firm you hire to protect you on a regular basis, they’d have access to all kinds of intimate details about your life, your associations and your daily routine that they could selectively deploy. They could leak information to a judge, jury or whoever’s overseeing the trial to cast you in a bad light. (I’ll write more about Smith’s view of courts and trials next week.)
Whichever way it works, there’s no one in this legal system whose only motive is seeing that justice is done. Everyone ultimately serves the interests of their profits and their paymasters—and if those don’t align with the facts of who’s innocent and who’s guilty, too bad. That’s the only outcome we’d have any right to expect in a society where money reigns supreme and there’s no such thing as law to check its power.
L. Neil Smith insists that none of these things will ever happen, because everyone in his North American Confederacy has ironclad principles that they’ll never bend or break—even when staring into the face of someone who just tried to kill them.
But if everyone was so unimpeachably moral, it wouldn’t matter what kind of society we had. The reason we have rules is because some people, sometimes, will try to harm or exploit others for their own benefit. How does society respond when that happens? What, if anything, prevents the rich and the powerful from trampling on everyone else? An anarcho-capitalist system like this one has no answer for that.
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Another factor to consider: private prisons who aren’t accountable to oversight can skimp in all kinds of ways and the captive audience has no choice but to pay whatever they’re being charged and accept whatever they’re given. There were all sorts of human-rights abuses against the children held in cages in Trump’s first administration.
At a less-egregious level, think of the captive audiences in schools (from elementary through college). Whoever holds the food contract often starts out reasonably enough, but as the contract wears on, the quality and quantity of the food tends to fall off a cliff. Now think about someone being held for 3 years, 5 years, 10 years…what incentive does the private prison have to feed their captives filet mignon? They’re taking the money already and the captives can’t do anything about it for possibly years.
Or look at the various add-ons by for-profit prisons, such as overcharging for phone calls or replacing libraries with overpriced use of tablets.
The CLA or some other professionally neutral organization takes care of everything…
Yeah, we call someone I know, someone or other shows up and does something or other and everything gets taken care of… That’s gotta be some of the hand-waviest world-building EVER.
The least I can say for Karl Marx is that he didn’t pretend to have any actual plan for how anything would “work” after the Revolution.
At this rate, I’m starting to think this whole NAC alt-verse is going to turn out to have been a big involved dream, and Win is going to wake up into his “real” world, which may also turn out to be pretty silly and unreal. Maybe it’ll all turn out to be an erzatz Inception remake where people just fall asleep or “wake up” from one layer of dreaming to a different but also unreal layer. Maybe L. Neil Smith himself woke up in his afterlife and thought “OMG my entire worldview was a weird silly dream!”
That twist would be way too good for this story. And now you’re making me think of the possibility that our current lives are just a bizarre dream, and when we die we return to the true reality, but every night we are “born again” in dreams, and this is the reason life sucks because it isn’t coherent anyway. There is certainly a plot bunny there for anyone who wants to write that story.
My own take on Communism in the Marxist vein is that it can work just fine…. within a single community. A small one.
Once the village gets too large for everybody to really know everybody else (essentially, once you’re past Dunbar’s Number, or what Cracked called ‘the monkeysphere’) it’s no longer possible to run a purely reputation-based economy, and it becomes a lot easier for people to figure out ways to slip through the cracks and get away with serial abuse of one form or another.
Of course, it doesn’t even need to get that large; even in a small town, a small minority can effectively take it over as long as they keep everybody else from organizing together against them. The reciprocal of Dunbar’s number is pretty much the percentage of the population that can be sociopaths before things start falling apart. (And I’m not being facetious there: Dunbar’s Number is usually estimated at 100-150, and the percentage of sociopaths in the population estimated in the range of 0.5% to 2%.)
Any society which doesn’t have some way to keep in line that percentage of the population which doesn’t care about anybody else is unlikely to last long, especially as those are exactly the sorts of people also likely to seek positions of power so they can make sure they can’t be forced to care.
Another possible setup is the illusion of a fair system for publicity. Many cases involving low paying customers, cases that are too obvious, cases that are too public and some situations between two different security firms get resolved fairly to maintain the image of security being worth paying for. High paying customers get their cases swept under the rug. Occasionally high paying customers who can’t keep their mouth shut and start getting in the way of the security firm’s reputation get some sentence, usually cut down home arrest.
The actually wealthy would pay multiple security firms, so all of the agencies in the area have an interest in protecting them, and a small expensive household and personal security on top of that. Of course working out an incentive structure for that small personal security that is allowed to carry a gun behind your back is a huge issue itself. One that has historically been a problem for a lot of people.
Oh, dis gon be gud. You already know how I feel about carceral logic and the carceral state. If I didn’t already decide that the presence of capitalism put the lie to this being a utopia, the criminal justice system being like ours but worse (because it’s for-profit) would send me running in the opposite direction as far away as possible. This isn’t anarchic at all: anarchism is utterly incompatible with prisons, as any political expert can tell you. I don’t know whether you would be interested in watching a thirty-minute YouTube video, but Andrewism’s “Can Anarchy Protect Us From Bad People” (and his other videos) go a way toward explaining the alternatives, alternatives that L. Neil Smith did not know. I really do think that he just thought things would be fine if we got rid of government but kept everything else exactly how it now is, and so nothimg else needs to be changed. I don’t know when for-profit prisons started, or whether that was before or after this book, but their abuses are so well known now that I can’t believe he’d think this a good idea whatever his politics. The only excuse would be them not existing in his time, which is still not an excuse because the flaws are so inherent to the idea, and obvious to anyone who can extrapolate based on known facts, that they could be seen from a mile off. You perfectly describe all the perverse incentives that lead to the race to the bottom, resulting in horrid abuse. The only way to avoid them is to have neither for-profit prisons nor private security that charges a fee for its service.
At first, I was shocked that Win is actually shown as being in the wrong, but then I realized that that isn’t because Smith in any way opposed police brutality; it’s because Win is from a statist world and so would use its techniques, while Ed and Lucy are from the “better” world and so Win is a barbarian compared to them. Of course, since there isn’t a meaningful difference between the two systems, this doesn’t work. One has a veneer of civility, but that is all.
I’ve read more than a few libertarian arguments that claim an authoritarian system run by corporations would be morally superior to one run by an elected government.
It’s for things like that that they don’t truly deserve to be called libertarians at all, but nobody knows what you mean when you call them “propertarian”. They obviously don’t oppose the state if they just want corporations to take over its role (and govern even harsher than the state does) and this is how we get the oddity of people claiming to be anti-government while being strident authoritarians. Of course, Smith himself was not a CEO, so he was merely a useful idiot for these people whose only complaint with the status quo is that they personally are not in charge, not that an unjust hierarchy exists at all.
The late libertarian windbag columnist Tibor Machan wrote that we have too much democracy because it allows the public to elect politicans who will regulate corporations. What’s needed is a tiny state where everything is privatized, then corporations will be free to run schools/maintain roads/etc. however they want! Freedom!
Machan also insisted both that while It’s Your Own Fault if a corporation sells you a crap product or service, telling people “Watch out, corporations may sell you a crap product or service!” is an attack on capitalism because why assume corporations would be so unethical?
They have a very Orwellian definition of freedom (which in some cases has even included “voluntary” slavery, and certainly indentured servitude).
As I recall, in an earlier chapter, Win noted that he, and virtually every other police officer he knows, gets through an entire career in corrupt, crime-ridden, statist USA. How many times have Win and his friends fired guns in the last day or so of the story? But not of Win’s friends are particularly surprised at the level of gunplay going on around them. Smith could have straightened this out by making statist USA worse (with police shooting people willy-nilly), but something in him made him give a glowing report about this particular type of government agent.
That might be because most libertarians are fine with the two worst parts of the state—police and military, explicitly to protect private property and nothing else. This is probably why their definition of initiating force is so backwards.
Brendan: Agreed
“What would you prefer, a lynching? He’s got rights, my friend…”
Did lynchings happen in the NAC utopia? If not, where would anyone in the NAC have learned that word?
I think that the problems could go in the opposite direction just as easily Adam. For instance, how would security firms get anything done without some cooperation with each other? They have the incentive to protect customers, though if they all do that mindlessly other firms will back. How then could ever actually protect theirs by prosecuting any other firms’ customers? Cooperation is necessary at least to a degree. A merger or acquisition also could occur, with the larger firms then price fixing and otherwise making smaller ones fail. You could easily end up with a private state through either all of them merging or a few big firms just running everything. I consider that a far more probable scenario than the NAC.
Speaking of governments (recognized or not), I’m remembering that the “C” in “NAC” stands for “Confederation.” So what’s it a confederation of? The United STATES was originally a confederation of States, which I presume retained their powers since the Hamiltonian Federalist Constitution was overthrown. So what happened to State governments since then? Do they have ANY role in this “justice” “system?” I find it hard to believe that States would have no policing power in a Confederation where they had ceded no such power to any other government.
Or did someone just eloquently persuade all the States to defund all their police and militias, like Jefferson had eloquently persuaded everyone to abolish slavery?
That’s a good question. It appears that in Smith’s timeline, the states were abolished along with the federal government when the Constitution was scrapped. So what’s the “C” a “Confederacy” of? I have no idea.
Wow, Smith’s book comes off even stoopider with every zarking sentence you type about it.
I watched the first Purge movie last year. it hypothesize that for 12 hours once or twice a year, the law is null and void and nothing is illegal (https://frasersherman.com/2025/01/22/more-marginalia-for-my-jekyll-and-hyde-book/). The filmmakers have a much clearer grasp of how bad that would be than Smith does.
The filmmakers also have a far clearer grasp of who would really benefit most — by a pretty wide margin — from that arrangement: the wealthiest people, who could afford to buy themselves the most and best security, and thus pretty much game the whole “system” to their advantage. A movie whose unique unpleasantness is more than matched by its honesty. (Haven’t seen the sequels.)
This reminds me of the judicial process in the Free and imperial city of Nuremberg until it was annexed into Bavaria in 1812 or something:
1. put suspect into the Lochgefängnisse below the town hall (now a tourist attraction well worth a visit!)
2. torture them until they confess
3. put them in front of a judge
4. if they don’t repeat the confession to the judge go back to step 1
5. punish them harshly
The inmates had to pay for their care.
Everything in the city was ultimately decided by the patricians. This excerpt from the wikipedia article about the so called free and imperial cities of the holy roman empire (linked above) seems relevant:
Initially, the constitution of the free and imperial cities was republican in form but between 1548 and 1552, as a result of the defeat of the Schmalkaldic League, the democratic constitutions of 28 cities were replaced by constitutions that concentrated the power in the hand of an oligarchic Small Council. Those self-perpetuating councils were composed almost exclusively of patricians, who belonged to the most economically significant burgher families who had asserted themselves politically over time.