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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OK, how is knowing the name Madison and nothing else going to help them? There are thousands of people with that last name. Is this just Smith the thriller writer’s compulsion to never call people by their full names at work? Win didn’t force the perp to specify which Madison. Also, I’m sure this was just Smith’s stupidity more than anything else, but Win is Native American, and Native Americans have repeatedly said that the word “savage” is as offensive as the N-word when applied to them, yet neither Win nor Ed reacts to it? Clearly, Smith knew nothing about Native Americans. He probably thought that the word meant nothimg more than “uncouth, violent person” but it is quite telling that that is his world’s prime insult.
I’m not going to beat a dead horse here about anarchocapitalism not being anarchism, and capitalism of any kind being incompatible with anarchism, because at this point it’s a matter of us using different definitions. I don’t know where you got your definition from, but it’s not accepted by political scientists and so no more valid than defining abiogenesis as “spontaneous generation”, but I don’t want to start a fight. That being said, what is your actual reason for thinking that the community would just let someone declare no “judge” (for lack of a better term) is acceptable and that they should suffer no consequences despite admitting to the wrong? If that really happened, people would and could make their life miserable. It’s actually kind of nuts that you think that someone could, say, shoot somebody in broad daylight, in front of witnesses, then say that they “do not consent” to any sort of justice, continue to live as if it never happened, and the community just throws up its hands and says “well, he won’t consent to justice, therefore there is nothing we can do.” If something like that occurred, the best case scenario for the murderer would be that the community forces them to go to trial anyway, and the worst case scenario would be getting slain in turn. The latter option is unstable in the long run, so the former option is far preferable. Anarchists are allowed to work around the paradox of tolerance without this compromising their beliefs just as much as liberals are.
Yes, I agree – that would be nuts. So what’s the alternative that you’d support?
As I understand it, the point of anarchism is that all interactions between people should be voluntary. Left- and right-wing anarchists disagree on what this would look like in practice, but they ought to agree on this basic point. That’s the defining characteristic of anarchism: there are no hierarchies of power that will force me to obey them whether I want to or not.
If you make an exception and say, “of course, there are some laws that you are forced to obey, and if you break those laws, there’s a system that will punish you whether you consent to that or not”… well, that’s what some of us call a state.
That may be a feasible solution, but it’s not an anarchist solution. Do you disagree?
I disagree, because we can scale this down to an interaction between two people. If someone punches me in the face, and I demand compensation and get it, does that make me an authority over him? No, because if the situation were reversed I would have to give the compensation instead. Authority implies that I could punch him in the face and suffer no consequences, but that person could not do the same to me because I “outrank” them. The fact that rules need to be in place to prevent hierarchies from being set up does not imply there is any sort of state, because anarchy has never opposed the existence of rules, only of rulers. Rules can exist and be enforced even without hierarchical authority.
I brought up that hypothetical to show that people wouldn’t just let someone get away with something like that. They would not consent to it.
Authority implies that I could punch him in the face and suffer no consequences, but that person could not do the same to me because I “outrank” them.
No, authority doesn’t necessarily imply any such thing. I know of lots of people who had various sorts of authority over me, who could still have been punished had they harmed me in any serious way.
The fact that rules need to be in place to prevent hierarchies from being set up does not imply there is any sort of state…
That mere fact, in itself, does not imply any sort of state. But if whatever rules you have need to be consistently enforced, against a small or large minority who would otherwise choose to disregard them, then enforcement of the rules would require some sort of organization, which would inevitably become hierarchical, and which would pretty soon acquire coercive powers. Which is to say, a state.
I brought up that hypothetical to show that people wouldn’t just let someone get away with something like that. They would not consent to it.
They would if “someone” outnumbered and/or outgunned them. Lots of people have let gangsters get away with all sorts of shit for that reason; and whatever state/police existed there were either not available, not adequate, or not trusted. (And remember, the guy in this novel wasn’t a lone thug, he was part of an armed gang, who’d only surrendered after his gang was defeated by the good guys’ superior plot-armor.)
I think we’ve gotten distracted by the analogy. My analogy was arguing that Adam’s hypothetical of “what if the offender accepts no judgement at all” doesn’t make sense—anyone who tried that would face immediate backlash by the community. Anarchists would indeed have to fight off a would-be gangster who wanted to set up shop and terrorize them (assuming that such a thing were to happen in the first place). But so does our current system. Community defense is a huge part of anarchism that is being overlooked here.
My analogy was arguing that Adam’s hypothetical of “what if the offender accepts no judgement at all” doesn’t make sense—anyone who tried that would face immediate backlash by the community.
What about Donald Trump? He’s been overtly saying that he accepts no judgment from anyone on anything, for DECADES — where’s the “immediate backlash by the community?” Where’s the backlash against Musk, Thiel, or even Bush Jr. for their flouting of community norms? Where’s the backlash against Russian oligarchs who’ve been pillaging their communities since 1991, if not earlier? Hell, even the idiot who wrote this book admits that doesn’t even work in his fantasy-world-within-a-fantasy-world. Why else would armed gangs even exist, if all the potential baddies feared “immediate backlash by the community?” (Oh wait, “the community” are all laying about in the sunny city park so they won’t be near enough to respond…I keep forgetting that…)
Anarchists would indeed have to fight off a would-be gangster who wanted to set up shop and terrorize them…
And with no pre-existing organized security force, they’d be at a huge disadvantage — just like people in the real world whom their local cops are unwilling or unable to protect.
…(assuming that such a thing were to happen in the first place).
Why would you assume such a thing wouldn’t happen?
Community defense is a huge part of anarchism that is being overlooked here.
It’s overlooked because it’s too often proven insufficient, and nearly everyone understands that we still need a state, and some hierarchical administrative and enforcement systems, as a backup. (And we also need them to encourage offenders to submit to “community defense,” or face the more brutal alternative.)
Then I turn to the judge and say: “I’ll pay you a thousand dollars to rule for me.”
You’re approaching this in a much-too-civilized way – sign of a sheltered life.
LMFTFY: Then I turn to the judge and say: “Rule for me or I’ll tear your head off and beat you to death with it.”
More genteelly: “Rule for me or my friend here’ll tear your head off and beat you to death with it.”
1: An enforcement system you can avoid by wearing a pair of glasses doesn’t hold much weight. A serial killer likely would be fine changing their appearance and name every time they get found guilty. Problem solved, for them. Without a national ID changing your identity is not a huge problem.
There is an even nastier problem with this system also. Looking too much or having a name too much like a famous criminal would destroy your life.
2. Business people would likely increase prices based on what crimes a person is guilty of. Large cities would have a slum where prices are higher but the owners don’t look up who is buying. There would likely be people who make a living working as a straw buyer for criminals who can’t go into many stores themselves.
3. Not to mention an actually organized criminal organization. The real world practice of having some people on the edge of the organization that maintain a good reputation and act as buyers for the organization would work great in this sort of world.
Or even people on the edges of a criminal organization who maintain a good reputation, but act as judges. Mind, we’ve seen that sort of corruption in our world, but it would be a whole lot more common in this one.
Mention of sovereign citizens brightened my day. It’s always funny watching videos of these dolts finding out.
The particularly funny thing is this: I’ve watched a LOT of videos of sovcits encountering either police or judges. They usually come well equipped with arguments – they’ve obviously been reading something. My guess is, they paid money to read it, which increases their tendency to believe it’s true. And it fails. Every. Single. Time. I’ve yet to see even ONE person say “I’m not driving, I’m travelling”, or any of the other sovcit magic spells, and not eventually get bundled into the back of a squad car or into jail. More recently I saw an excellent and very short video where the cop heard the words in those quotes (after three quick attempts to get her to produce documentation for her car) and didn’t bother arguing, he just IMMEDIATELY dragged the woman out of the car, cuffed her and put her in the back of his car. No messing about. He informed her young adult daughter that no, he wasn’t going to give her a lift, that she needed to get an Uber or whatever, and that no, her mother wasn’t going to be taken to a “magistrate” she was going to jail and the car was being impounded. It was highly entertaining to watch. It was not made clear whether the perp’s name was Karen, but it kind of went without saying.
What baffles me is that if you search youtube for sovcit material (and I have) you don’t find even ONE where it looks like it even STARTS to work. And yet, it persists. It’s as though someone, a couple decades back, put it about that you could gain superpowers by smearing tomato ketchup on your face, and now, in 2025, emergency services were still regularly scraping the broken and red-faced bodies of people off the ground beneath tall buildings and bridges, despite youtube being noticeably light on videos of ketchup-faced people flying.
…
I’m off to write a pamphlet on ketchup powers. It’ll be available soon, only $20.
Without a state, how do consistant rules get established, and more importantly who decides how to interpret the rules.
Win just threatened to torture a guy – and his friends didn’t shun him. So there’s a lot of flexibility in people’s standards.
This chapter I remember because of the way Lucy jumps in with the information about the judges. That should be the kind of common knowledge that it’s hard to remember that someone else doesn’t know (and also hard to explain to someone who didn’t grow up with it*), so it makes more sense for Win to ask a question that leads to that info being dropped in – but here Lucy seems to be perpetually ready to answer basic questions about her society, as if she expects to run into someone completely foreign at the drop of a hat.
There’s a 21st century SF series which features a supposedly libertarian society where people shun rule-breakers – but in fact, there’s an organization that evaluates people’s rule-following, and everyone accepts their judgment and shuns on their say-so, so really, it’s a government in all but name (and a rather oppressive one)
*Back in the 1980s, I tried to explain Mad Magazine cartoons to a foreign exchange student from China. Sometimes I got the joke across, but a lot of times, I couldn’t
” The bright side is there’s no professional criminal class, no “ex-offenders.” Once you’ve made it good, you’re square.”
Is Smith arguing the only reason for a professional class is the effect of prison … wrong.
And would everyone really be cool with someone who’d paid their debt? No resentment, no suspicion that a guy with a record for beating people up or harassing women wouldn’t do it again? How would you make someone whole you’d raped? And what if you have Elon Musk’s money and can afford to pay multiple charges?
https://en.wikipedia.org/wiki/Ken_McElroy is a noteworthy case in our world. A man who committed crime after crime for decades, and eventually was murdered in public by someone who no one wants to identify (either because the community is happy with the action, or because the community, previously scared of McElroy, is now scared of the new guy).
This is in reply to Raging Bee, since we have hit the thread limit again.
I just want to say that Donald Trump and other billionaires have been flouting the rules in our current system, which allegedly can force them to comply, so if anything this is a counterexample to the claim that the current system can force compliance. Obviously it can’t, or they’d have all complied by now. And anarchy would not have a wealth difference or whatever else lets these people get away with it under the current system.
The gangster hypothetical is the worst case, and even then, I bring up community defense because gangs could only take over if civilians are defenseless. Research has demonstrated that decentralized systems have fewer points of failure than centralized ones, and therefore could fight off an invading hierarchy ceteris paribus. (Gangs are hierarchical by definition. There is absolutely no reason to assume “gang versus anarchist militia” would not result in a victory for the militia—they’d have access to the same weapons.) When I said “assuming that it happens at all”, I was just pointing out that it isn’t inevitable that some gang would show up trying to take over because that would require resources that the gang leader would not necessarily have. I am willing to consider that it could happen, though. The Russian oligarchs could terrorize the people because the collapse of a state is insufficient for anarchy. Before that happens the people need to create parallel institutions based on anarchist principles, and that obviously could not happen in the dictatorship that was the USSR.
Now, this is getting too much into theory, but the state is not a protective or even a neutral institution. By definition, it is a system that establishes unjust hierarchy and maintains it by any means necessary, no matter how inhumane. This means that an alternative institution that does protect and liberate people could exist, but would not be a state (because it is objectively different in structure) and anarchists would have no objections to this non-state thing. But that’s getting beyond the scope of this comment; a lot of this confusion would be resolved knowing that the anarchist means something a bit different from the normal person when we say “state”.
Thinking about it I like the idea of a society where restitution is the accepted way of dealing with crime. But that would be a tricky thing to make work, and as noted in the discussion here, there would probably be workarounds, particularly in a country the size of the United States. But Smith doesn’t provide the worldbuilding or concede that his utopia doesn’t have a miracle cure.
As for the ethical dilemma here 1)Win doesn’t know what’s at stake yet. 2)If murder is a sure path to exile, wouldn’t that be the first thing the perp would bring up (“You won’t kill me! You wouldn’t dare!”)? Everyone’s reacting like they’re in a tough-cop drama rather than Win being an outlier.