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Anthony de Jasay: Political Philosophy, Clearly: Essays on Freedom and Fairness, Property and Equalities, reviewed by Aschwin de Wolf, in: Economic Affairs, 2011

One of the most important challenges for secular thinkers during the twentieth century was how to conduct philosophy in an age when most of the traditional questions of philosophy had been delegated to the empirical sciences or shown to permit only subjective, arbitrary answers. The most credible expressions of these concerns can be found in the works of the logical empiricists and critical rationalists. In particular, a most pressing issue is whether any meaningful moral or social philosophy is still possible. Two prominent modern thinkers who have risen to the occasion are David Gauthier and Anthony de Jasay. Both have a clear understanding of what kind of philosophy is no longer credible and seek to develop approaches that make minimal concessions to old-fashioned moralism or simplistic utilitarianism. They also share a preference for embracing the tools of modern economic analysis and game theory.

Anthony de Jasay’s latest book, Political Philosophy, Clearly: Essays on Freedom and Fairness, Property and Equalities, collects a number of recent published and unpublished essays. In contrast to his more reference-driven earlier writings, many of these essays concern logical analysis and clarification of the relationship between concepts such as justice, fairness and liberty. One of his many intellectual accomplishments is to make political anarchism the prudent and common-sense position, as opposed to the classical liberal pipe- dream of conceiving a government with built-in incentives to limit itself.

There is some degree of repetition in the book but this is mostly in the good sense of the word. A number of important themes are discussed from different levels of abstraction, starting points and angles. What is left implicit in some chapters is made explicit in others. These recurrent expositions and refinements are important to understand de Jasay’s thinking because he often uses rather original arguments in support of unorthodox conclusions. The best way to do justice to this great selection of essays is to give the reader a taste of the project that de Jasay is embarked on by discussing some of the topics in the book.

A recurrent theme in de Jasay’s oeuvre (and this book in particular) is that liberty should be presumed, not because we have a ‘right’ to it, or because it is the most important value or goal, but because it follows from the requirements of epistemology and logic. His current thinking on this matter has culminated in the essay ‘Freedom from a Mainly Logical Perspective’. In a nutshell, the argument (as I understand it), is as follows.

There are two basic means of evaluating the truth of a statement, verification and falsification. The preferred choice between these two means reflects the nature of the proposition and efficiency considerations. If a claim is made that someone is not free to do something, the burden should fall on the person who challenges that freedom. The reason for this is that the challenger needs only a strong enough case that at least one reason against the act in question is valid. If the burden of proof would rest on the person whose freedom is contested, the number of arguments that need to be falsified in order to prove that there is no good reason against it would be impractically large, or even infinite.

De Jasay considers his work on the presumption of liberty a central component of his oeuvre. I think that the argument is most persuasive in conveying to classical liberals and libertarians the message to abandon their tortured attempts to provide a justificationist framework in defence of liberty. I would add that his argument has a quasi-consequentialist component as well because it is more than a thought experiment to conclude that a society in which everything that is not allowed by statutory law should be forbidden would not permit the most basic forms of individual conduct.

What does concern me is that de Jasay is not very specific about what criteria should be employed to distinguish successful from unsuccessful arguments to refute a claim in favour of the freedom to engage in a certain act. I assume that de Jasay would defer to spontaneously evolved conventions and rules as legitimate objections but this raises the question why he does not ‘simply’ argue in favour of spontaneously evolved rules and leave the presumption of liberty argument to the side. I fear that in reality the flexibility in interpreting what constitutes a valid argument against liberty will be employed by political zealots in the same manner as they interpret a written constitution. Modern Western society also endorses the closely related principle of the presumption of innocence but this does not seem to have much of a sobering effect on what should constitute a crime.

I think that a number of the problems that de Jasay detects in liberalism can be overcome by making aggression the central feature of liberal arguments. This (Hobbesian) re-conceptualisation of classical liberalism as non-aggression has been an important breakthrough because it enables one to see things like ‘regulation’ and ‘public policy’ in fairly non-ambiguous physical terms. If one strips away all the rhetoric about ‘rights’ and ‘democracy’ one is left with a state that mostly engages in violence and threats of violence against peaceful people. Many of the important conventions that gave rise to private property and trade have evolved as a response to the suboptimal solution of resorting to violence to settle conflicts about scarce means. It can be argued that many, if not all, of the activities of modern states constitute an attempt to bestow legitimacy on the non-defensive use of force.

Interestingly enough, in a short, but quite powerful article called ‘Violence: The Disease and the Vaccine’, de Jasay laments the taboo on spontaneous non-sanctioned defensive violence and highlights the poor track record of governments who claim a monopoly on ‘legitimate force’ in fighting crime and unruly behaviour.

In a longer article, ‘The Private Enforcement of Rules’, de Jasay elaborates on the poor incentives governments have to maintain law and order and to avoid abuse of the ‘legitimate force’ at their disposal. We should hope that de Jasay will return to the topic of violence and its relation to other themes in his future writings.

Anthony de Jasay is perhaps best known among academic classical liberal scholars for his rigorous critiques of the feasibility of constitutional limited government. In one of his most extensive articles on this topic to date, ‘The Concept of Rule-Bound Collective Choice and the Idea of Constitutional Safeguards’, his characteristic combination of logic and common sense is on full display. He shows that the ideal of ‘rule by law’ as opposed to ‘rule by men’ leads to an infinite regress of rules (for rule making) and requires a self-referential rule that authorises itself at the start of the chain. Of course, there is no metaphysical truth that can confer indisputable legitimacy to such a first rule, and what is called ‘rule by law’ ultimately collapses into ‘rule by men’. De Jasay further shows that it is theoretically possible to generate a logically coherent constitution that should be immune to being undermined, but we would not expect such a constitution to have government-limiting effects for a long time because politicians and voters face strong incentives to use government to re-distribute income. The residual liberty that public officials and judges retain for implementing and interpreting the law will be used to move away from minimal government.

The book concludes with two articles that offer a simple game-theoretic exercise that introduces various kinds of asymmetry (strength, timing) between the players in an effort to generate a more realistic model of conflict in the (Hobbesian) ‘state of nature’. The most important conclusion that can be drawn from such further refinements is that the feasibility of ordered anarchy is highly dependent on the assumptions that operate in these models. For example, allowing ongoing distribution-with- production in the game is more realistic than assuming a pure distribution game. If one considers that even the more realistic refinements that de Jasay and his collaborators have introduced are still a shade of the multi-person complexity encountered in the real ‘state of nature’, the sheer absurdity of deriving the legitimacy of the state from game-theoretic modelling is clear. This does not mean that one is forced to remain agnostic on this issue. There is persuasive empirical evidence that enforcement of rules against aggression and theft, and the production of public goods, are antecedent to centralised government.

In his review essay of game theorist Ken Binmore’s book, Natural Justice, de Jasay highlights a fundamental weakness of ‘evolutionary contractarianism’. If we are genetically hard-wired to agree on a social contract that embodies the egalitarianism of our hunter-gathering forefathers, why is such a contract not enforced without political struggle?

The current reviewer should add that it is easy to claim that an evolutionary approach improves upon the unrealistic postulates of rational choice, but the cold hard fact remains that public policies that incorporate more ‘realistic’ or ‘fairer’ starting points invariably offer opportunities for free riding and parasitism that over time generate a renewed interest and appreciation for approaches with more emphasis on individual utility maximisation.

Anthony de Jasay’s non-ideological exposition of philosophical anarchism does not seek to defend the political status quo but is vulnerable to the argument that it mostly depends on the outcome of spontaneous order to generate outcomes that we would consider classical liberal in nature. His approach indeed lacks the dogmatic assurance of the more moralistic varieties of libertarianism, but it does justice to the modern recognition that the search for categorical imperatives is futile and justice can only be salvaged if it can reconciled with individual rationality. Whatever the form and content of a non- directed evolved order may be, de Jasay’s writings have inflicted a heavy, albeit still theoretical, wound upon the legitimacy of the state and it is doubtful that a healthy recovery is possible.

De Jasay’s increasing emphasis on Humean justice places him in a certain secular conservative tradition. The central role of liberty and private property is classical liberal. His meticulously argued anti-statism is anarchist. In the case of other thinkers this would strongly indicate an incoherent concoction of incompatible ideas conceived by a confused intellectual. In the case of Anthony de Jasay, the most important social philosopher of our time, these themes are linked with inescapable logic.