The Hard Case of Private Policing

Two threads of thought run together for me in the discussions about private policing and about the distinction between private governance and public governance. Aaron Ross Powell and Mark Lutter have both asked where we draw the line between them, a question I have been pondering for many years. Both employ something like Max Weber’s definition of the state, which includes an important qualifier to Lutter’s phrasing: “a territorial monopoly of [legitimate] force,” which I also employ. And while I am largely in agreement with Stringham’s overall thesis, we seem to disagree on the issue of private policing. I think a pointed look at the issue of policing helps nail down the issue of private versus public governance, because policing is the most fundamental case of government’s monopoly of legitimate force.

To begin, Stringham’s argument for the effectiveness of private policing fails because he cannot provide for it the same type of example that he can for contract enforcement—a case where private policing indisputably worked well in the absence of public. His example of private policing in gold rush-era San Francisco may be such an example, but the evidence he is able to provide does not satisfactorily demonstrate that he is not really examining a case of vigilante justice. And his examples of more contemporary private policing occur in the context of that private policing being adjunct to the existence of public policing. These private police provide services in addition to the public police, not in the absence of public police or government.

Put simply, he has not demonstrated that private police don’t gain their legitimacy from the existence of public government. Private police don’t privately prosecute suspects; they hand them over to public police and prosecutors. They don’t privately jail convicted criminals; they leave that to the public government’s prison system.

And that reliance on a public enforcer is, I think, the Weberian key to distinguishing between public and private. Consider Powell’s example of arcologies without an over-arching state above them, where residents have freedom to exit from one and move to another. Do any of those arcologies claim to have a monopoly on the use of force over its members, for example by confiscating property of non-dues payers or confining a violent person? If so, it is the highest level user of force, not constrained in that use by anything except its residents’ willingness to exit. If residents choose not to leave, they have legitimated its use of force. At this point, how can we meaningfully say it is not public governance?

The charter cities movement is of interest to me, and I would hope that it gains strength so that we can see what happens when governments have to operate on a more market-competitive basis. But the proposed charter cities are perhaps private governance only because they are proposed to be established within, and subject to the rules and violence monopoly of, existing states. Seasteading, by contrast, would establish new privately owned territories outside the territorially bound violence monopoly of existing states. Seasteads would, by Weber’s definition, become de facto states themselves. That is, unless residents denied the seastead owners/managers’ authority to use violence.

The perhaps surprising conclusion of this approach is that private policing may be a concept that can only exist within the confines, and subject to the authority of, public government. “Private” policing with no higher authority is effectively an expression of the violence-monopoly, and would indicate the presence of a real state, and therefore public government.


Also from this issue

Lead Essay

  • Edward Peter Stringham argues that private governance isn’t a fiction. It’s a key, though unappreciated, aspect of modern life. Much political economy begins with the assumption that markets require external, nonmarket institutions to provide services of assurance and trust, without which markets cannot function. Stringham suggests that this is not necessarily so, and he uses evidence from real-world private governance to make the point. Private governance has existed and continues to exist in markets both simple and highly complex.

Response Essays

  • Aaron Ross Powell questions whether private governance is truly possible, and if so, what that would mean. Much of our current private governance would clearly never exist if it were not backed by the persuasive threat of force from some state-like entity. Both in his lead essay and in his book, Edward Stringham fails to draw a clear distinction between public and private, and as a result, it is unclear how these two terms should be deployed in many plausible situations, both hypothetical and in our own world. Powell questions whether these terms are not used in an ad hoc manner, robbing Stringham’s work of any significant normative force. The state we have may still be inefficient and cruel, and private institutions may commonly still be better, but the line between them isn’t so clear.

  • James E. Hanley argues that private institutions may be ill-suited to certain forms of governance. In particular, violent crime lacks the iterative nature that makes private governance work in many other situations. Moreover, as private institutions assume more and more of the duties of criminal punishment, they increasingly risk taking on the attributes of criminal enterprises themselves, particularly if their procedures lack legitimacy. Those who choose to say under their care will find themselves at the mercy, perhaps, of “stationary bandits” - and yet it is commonly observed exactly such organizations may have been the state’s progenitors.

  • Mark Lutter cites evidence that suggests that even in the realm of finance, private governance can’t always deliver. He questions Stringham: How far, exactly, does he think private governance should go? All the way to anarchy? If so, what does he think will happen to the problem of violent competition among agencies with varying degrees of legitimacy? Lutter also raises the problem of low-frequency preferences: One of the great things about the market is that, unlike in democratic decisionmaking, minority tastes in the market can commonly be satisfied. That’s a wonderful thing when it’s a matter of deodorant or sneakers. It’s not so great when a small minority has a taste for violence, as with, for example, the Ku Klux Klan: A market for violence might see much more of the Klan’s demand satisfied.