
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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