The Right Side of Anthony de Jasay

This essay appears in the Spring 2019 issue of Modern Age. To subscribe now, go here.

Anthony de Jasay, a libertarian economist and political philosopher who died in January, had no use for the pieties of the left, and conservatives will find congenial his diagnosis of the maladies of academic political thought. This claim may seem paradoxical, as many people see libertarianism as unrealistic. Do not libertarians claim that individual rights are all important, and that family and nation must be strictly subordinate to these rights? Is that not antithetical to the particularistic spirit of conservatism?

The paradox deepens when we learn that de Jasay sympathized with the anarchist wing of libertarianism. In an interview with Hartmut Kliemt for the Liberty Fund’s Intellectual Portrait Series, he said: “But if I have to tell you the truth, yes I am an anarchist. But that doesn’t mean I believe that anarchy here and now is possible. It is desirable but not possible.” It is clear, though, that he was no ordinary anarchist. In the same interview, he admitted: “If I were the only anarchist, I would be very happy to bear the title. What embarrasses me about it is that [of] the few other anarchists, many of them are crazy and I don’t feel like being identified with them. So that embarrasses me.” Why was he so dismissive of his fellow anarchists and classical liberals? He offered an explanation in a 2011 interview with Aschwin de Wolf, published in the Independent Review:

One of classical liberalism’s weaknesses that I always found impossible to swallow was and I think remains that it indulges in unrestricted wishful thinking. It elaborates beautiful constitutions based on such liberal values as freedom, property, the rule of law, the independence of the judiciary, and so forth, explaining the moral superiority and practical advantages of the liberal order that such a constitution would produce and showing an almost pathetically naive confidence that the dream constitution would in fact produce this dream result. This sort of argument has been advanced in fine disregard of the live forces of real-world politics that are incompatible with such constitutions.

De Jasay, far from championing universal human rights and constructing on this basis a political system, rejects this sort of ethical rationalism. In his view, no interpersonal agreement can be reached on “value judgments.” We can ask whether value judgments are consistent; but an individual’s value judgments, as such, are incapable of being assessed by reason. “It is perfectly possible for me to share your value judgments, but it is never intersubjectively compelling for you to share mine, never a matter of straight practical inference, and never a bow to the rules of rationality,” he writes in Against Politics.

To deal with this situation, de Jasay adopted what he called “moral minimalism.” If value judgments clash, we should assume as our starting point that people are free to do what they want. Those who wish to restrict others must carry the burden of proof that such a restriction is in some sense necessary. To many of us, it will seem that he is here giving the case for objective morality rather short shrift; but this is his position, and he makes creative use of it.

What would happen if, as de Jasay suggests, people were free to do as they want? Would people find themselves in a Hobbesian world in which life is “nasty, brutish, and short”? De Jasay does not think so, as he reveals in a 2002 Liberty Fund essay reprinted in his 2009 collection Political Economy, Concisely:

Here we reach the nub of the problem of why people in some societies behave mostly well, while in others they so often misbehave. Law even at its best controls only a small part of human behavior. At its worst, it aspires to control a great part, but largely fails. Vastly more important than the legal system is the much older and more deeply rooted set of unwritten rules (technically, spontaneous conventions) barring and sanctioning torts, nuisances, and incivilities that together define what each of us is free to do and by the same token what no one is free to do to us. If these rules are kept, everyone is free, property is safe, and every two-person transaction is mutually beneficial.

Whether de Jasay is right about how these conventions develop is not for our purposes the main issue. The key point is that unless people do follow without question certain rules of behavior, society will collapse. It cannot be assumed that people, regardless of their background, will do so. This is a matter of their cultural background; and here, in a way that conservatives will find congenial, de Jasay recognized the importance of national identity. Not for him the assertion of a universal right to migration professed by some libertarians. He elaborates in a 2006 essay entitled “Immigration: What Is the Liberal Stand?”:

It is quite consistent with the dictates of liberty and the concept of property they imply, that the country is not a no-man’s-land at all, but the extension of a home. Privacy and the right to exclude strangers from it is only a little less obviously an attribute of it than it is of one’s house. Its infrastructure, its amenities, its public order have been built up by generations of its inhabitants. These things have value that belongs to their builders and the builders’ heirs, and the latter are arguably at liberty to share or not to share them with immigrants who, in their countries of origin, do not have as good infrastructure, amenities and public order. Those who claim that in the name of liberty they must let any and all would-be immigrants take a share are, then, not liberals but socialists professing share-and-share-alike egalitarianism on an international scale.

De Jasay, who grew up in Hungary during the dark years after the First World War, doubted that a free society could be sustained. The principal obstacle was the state, which he viewed as predatory. He advances this view at length in his masterwork The State. He says, for example: “The state . . . has got all the guns. Those who armed it by disarming themselves, are at its mercy. The state’s sovereignty means that there is no appeal against its will, no higher instance which could possibly make it do one thing rather than another.”

Even a state that began as limited and constitutional would find it virtually impossible to avoid becoming an “adversary state” that coercively extracts resources from people or buys support from some groups at the expense of others through redistributive transfers. Constitutions are parchment barriers. Only a higher authority could enforce limits on a state, and then the question would arise again: What could limit that authority?

De Jasay’s cynicism about the state was too much for the great public-choice economist James Buchanan. Though he admired de Jasay, he remarked: “The State reflects Jasay’s own perspective on history and on the politics that history allows him to observe. This perspective is essentially that of central Europe prior to World War II. It is profoundly pessimistic, and it seems to express a longing for a civil order which, even as an ideal, most Americans would reject.”

Here de Jasay must confront an objection. However dubious one may be about the bona fides of the state, do we not need a state to provide so-called public goods, by their nature nonexcludable, such as roads and a legal system, which the market cannot by itself provide? This point lies at the heart of Buchanan’s quest for a constitutionally limited state: public goods debar us from eliminating the state altogether.

De Jasay did not agree. In a 2006 essay, “The Failure of Market Failure. Part II. The Public Goods Dilemma,” he writes: “The provision of public goods does not presuppose collective choice that overrules individual ones by the brute force of politics. Those who instinctively mistrust collective choices and trust that reasonable solutions emerge from free individual choices need not feel browbeaten by the ‘market failure’ argument.” He set forward his reasons at length in his 1989 book, Social Contract, Free Ride.

The agreement between de Jasay and Buchanan is for our purposes more important than their difference of opinion about public goods. Neither one saw the state as composed of benevolent actors intent on the good of society. In this they stand in marked contrast with the dominant trend in contemporary political philosophy.

Consider as an example of the current orthodoxy T. M. Scanlon’s 2018 volume Why Does Inequality Matter? Scanlon, who recently retired from Harvard, is one of the most widely respected American moral philosophers. He writes: “When there is great inequality in family income and wealth, individuals’ prospects of success in a competitive market are greatly affected by the families into which they are born. This can make it difficult or impossible to achieve equality of economic opportunity.” No doubt that is true, but to assume, as Scanlon does, that a function of the state is to remedy these inequalities is to credit it with benevolence breathtaking in its unreality. It would not be an adequate response that Scanlon has in mind “ideal theory” rather than motives of states in the world in which we actively live. To the contrary, he intends his remarks to justify practical proposals for reform to secure greater equality.

De Jasay had no sympathy for such programs. In “The Justice That Overrules the Rules of Justice,” he writes:

It is widely believed, I think on no solid ground, that social justice does have a rule, namely the reduction and ultimate abolition of inequalities, and that the social justice and the egalitarian agenda are synonymous. Dealing for the moment only with money incomes this would mean that once all incomes above the mean were cut off at the mean level and redistributed to those having below-mean incomes, equality having been reached, a socially just state of affairs will have been reached. But this is only too obviously not the case. Equal money will leave many inequalities and, worst of all, create new non-monetary ones. Moreover, monetary equality will generate claims of social justice on grounds of unequal desert unequal need, merit goods, or some less plausible pretext.

In his skepticism of reformist schemes, de Jasay shows his fundamental affinity with conservatism, and it is here that his work has its greatest value.

David Gordon is a senior fellow at the Ludwig von Mises Institute.

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