The Probability Broach, chapter 10

Win Bear and his friends fought off a home invasion and captured one of the thugs. Win wants to threaten the captive into talking, but his friends Ed and Lucy say things are done differently here.

They’ve already contacted the Civil Liberties Association, or CLA, which is the closest thing to the authorities in this society. Ed says the CLA will investigate, collect evidence and testimony, and pay for a defense if an accused person has no money:

“Then we’ll get together and hire a judge acceptable to all sides. Any appeal will go to a second judge—”

“Paid for by the first!”

“Yes, Lucy, paid for by the first. And if that decision doesn’t stick, a third judge may be called. His vote is final. Any two judges finish the matter. The whole process could take as long as a week.”

You’re supposed to focus on “as long as a week”—which is meant to sound great, although it’s an unrealistically speedy time for any justice system to operate.

But there’s another part of this that deserves more scrutiny.

One of the biggest problems I see with anarchism—including L. Neil Smith’s anarcho-capitalist variety, but other types as well—is that the justice system can’t be voluntary. Otherwise, stubborn wrongdoers will ignore attempts by others to correct their behavior.

This passage illustrates the problem. Smith tries to slip it in without you noticing: if there’s a dispute in his North American Confederacy, you have to hire a judge who’s “acceptable to all sides” to settle it. Well, what if I declare that no judge is acceptable to me? Can I hold off the legal process forever by refusing to participate?

If I’m beating my kids, or catcalling women in the street, or having noisy late-night parties that keep my neighbors up, or driving drunk, and someone files a complaint—what stops me from just ignoring them, refusing every attempt at resolution, and continuing on my merry way?

In our society, if you keep dodging subpoenas and skipping court dates, the court will eventually issue a default judgment against you that the police can enforce. If your behavior rises to the standard of serious criminality, you’ll be arrested whether you consent to it or not (as sovereign citizens have found out, to their dismay).

But an anarchist society lacks those options. The overarching idea of anarchism is that there should be no coercive power relations or hierarchies. That sounds good in theory, but only until some antisocial asshole is making your life miserable and there’s no way to make them stop.

There’s another problem here, and this one is specific to Smith’s brand of anarcho-capitalism. Let’s say we have a dispute, and we choose a judge following the procedure Smith suggests. Then I turn to the judge and say: “I’ll pay you a thousand dollars to rule for me.”

Why wouldn’t people do that? There’s no law against it, after all!

Obviously, the other side will offer a competing bribe, and things will escalate. This means the NAC’s legal system isn’t a trial. It’s an auction, where a favorable verdict can be purchased by whoever can pay the most. It’s yet another reason why the rich would be untouchable, while the poor would be completely shut out of obtaining justice.

Ed spelled out the rest of the procedure… People who hurt others are expected to pay for it, literally. There are no “victimless crimes:” shoot heroin, snort a little coke, ride your bike without a helmet, do anything—to yourself.

The “law” only compels you to restore your victims to the state they’d be in had the crime never occurred. Fail in that, and your name and face get plastered all over, a formidable threat in a society geared to something like the Telecom. Who’ll do business with somebody who refuses his moral debts? No place to purchase food, clothing, shelter, ammunition—any of the necessities of life.

And one certain way to get ostracized is to commit an irrevocable crime, like murder, for which restitution cannot be made.

Please don’t overlook the mention of ammunition as one of the “necessities of life”.

This is Smith’s answer for how an anarchist society could have enforceable justice in the absence of punishments like prisons or chain gangs. You have to compensate your victim for the harm you did, or else be ostracized and risk starvation.

He asks, rhetorically, “Who’ll do business with somebody who refuses his moral debts?”—so let’s go over the answers to that question.

1. Someone who hasn’t heard of you: This is the first and biggest one. According to Smith, the North American Confederacy encompasses the entire continent of North America (hence the name). Together with other anarchist societies in this world, there are over seven billion inhabitants.

For this to work, every business owner would have to recognize, on sight, every single wrongdoer in the world. Otherwise, criminals could just change their name, maybe dye their hair, and move to the next town over. Remember, there are no public records or official documents you can check to ID someone—they’ve never even heard of fingerprints!

Even if a minuscule percentage of the population commits crimes, that’s still tens or hundreds of thousands of people. Does he really think store clerks are going to pore over comically long lists of mugshots to figure out who not to do business with?

2. Someone who doesn’t care: Smith takes it for granted that everyone in the NAC will stand on principle and refuse to do business with a criminal who won’t make restitution.

This is, obviously, absurd. In an uber-capitalist economy, there are bound to be business owners who take the attitude that money is money and they don’t care where it comes from. That shouldn’t just be a common attitude; it should be the majority opinion.

How many businesses in our world would turn down the chance to profit, just to signal their disapproval of a customer’s behavior in an unrelated matter? Is this even a little plausible in a society based entirely on self-interest?

3. Someone who approves of your crime: Here’s another obvious problem: what if outcasts band together and support each other?

What if there are racists who approve of hate crimes against minorities? Religious cults and fundamentalists who scorn outsiders and support each other no matter what? Aggrieved people who suffered unfair rulings, and help others who they believe are in the same situation? What if you’re a beloved celebrity and your fans refuse to believe you’re guilty?

Unless ostracism is unanimous, it’s not effective as a punishment. That might happen in a tiny village where everyone knows everyone, but there’s no chance of it in a civilization this scale. It flies in the face of human nature.

Smith comes close to conceding this won’t work, as he says that self-exile is also an option:

Exiles can take their property and leave. Several countries still accept them, and a number of asteroid colonies. None very pleasant. The bright side is there’s no professional criminal class, no “ex-offenders.” Once you’ve made it good, you’re square. Every day is a fresh start, and that beats hell out of sitting in a concrete box, stamping out license plates.

It seems as though Smith felt compelled to add that “none very pleasant” line. Would it be a problem if exiles could go someplace that was pleasant? Would the people of the North American Confederacy see that as unacceptable?

Now that he was safely caught, our prisoner was relying on a highly-civilized system: no Confederate would harm him, but he was afraid of me. And that was intriguing.

“Screw your goddamned CLA!” I bellowed, working up a totally artificial rage, “I’m gonna get some answers the good old-fashioned way!” I waved the gun, brushing the tip of his nose. “You wanna wind up with your friends out there, face down in the driveway?” I shoved the muzzle against his left eye and clacked the hammer backward, grinning like a demon.

He screamed and struggled. The guards had to plant their feet. “Don’t hurt me! Please don’t hurt me!”

The death threats have the intended effect, and the prisoner spills his guts:

The prisoner sobbed, head forward on his chest. “It was Madison. He said it was for the Cause! Keep that savage away!” I was suddenly afraid he’d faint before he really opened up. “Madison will get you! He’ll take care of you all! He’s—he’s got something, something from the other—” He stared at me, I think in sudden comprehension. “He’ll blast you all to radioactive slag!”

So… torture is a good thing?

Smith wants to have it both ways. On the one hand, he’s anxious to prove his political ideas could work. He wants to write an anarcho-capitalist world where everyone is unimpeachably moral and respects everyone else’s rights. Even Win feels bad about threatening the thug, and his friends are mad at him for it (though of course they quickly forgive him).

On the other hand, he’s written a plot where torture is justified, arguably even essential. As we’ll see, this “Madison” name is a crucial clue. Without it, the protagonists’ investigation would have gone nowhere. The North American Confederacy would have been invaded, possibly conquered. And Win was only able to obtain it by “breaking the law”.

Which is it? Should we hold to our principles even at risk of annihilation, or do desperate times justify desperate measures?

That’s a dilemma every society faces, not something unique to this one. But it hits with special force because Smith insists there is no tradeoff—that more liberty also means more safety. Yet even in a fictional world of his own creation, he can’t make it work out that way.

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Other posts in this series:

• The Probability Broach