Princess Mathilde and the Immorality of Politics

Against Politics is a collection of some of de Jasay’s scholarly articles (plus one lecture) posterior to his seminal book, The State,2 and can be viewed as an elaboration of and a complement to the latter. It should be remembered that de Jasay defined himself as both a (classical) liberal and an anarchist.

A Devastating Critique of the State

Princess Mathilde, a niece of Napoléon Bonaparte, expressed a hedonistic-egoistic view of the state when she defended her late uncle by saying that, “without that man I should be selling oranges on the wharf in Marseilles.” Government, de Jasay argues, is essentially a redistribution mechanism, which some, like Princess Mathilde, use very effectively for their own purposes. Politics helps some to the detriment of others. This, he explains, is as true, or even truer, in a democratic system, where the majority defines what is the “common good” or “public interest.”

In de Jasay’s view, the public interest or common good is meaningless. It cannot be a sum or another form of aggregation of the preferences or interests of the polity’s members because it would require interpersonal comparisons of utility. For example, if I prefer oranges to apples and you prefer apples to oranges, there is no meaning in the statement that we as a group prefer one or the other fruit and by how much. Such pronouncements “are unfalsifiable, forever bound to remain my say-so against your say-so.”

Making a political choice—also called social choice in contemporary political theory—requires evaluating and weighing its consequences on different individuals compared to an alternative. Utilitarianism is the version of consequentialism that claims to take all individual preferences into account. But the consequences are not comparable, because they depend on the arbitrary comparison of the subjective utility of different individuals. Recall that “utility” only means the subjective and ordinal ranking of alternatives by each individual. In other words, “the good of different persons is incommensurable,” as long as all individuals are not identical.

The impossibility of interpersonal comparisons of utility is a fundamental idea of economics. De Jasay takes it seriously. Choosing one policy alternative instead of another and imposing it on all individuals necessarily implies harming some individuals in the process of benefiting others.

In a society where individuals are different, only Pareto improvements are defendable. A Pareto improvement characterizes an action or policy that is preferred by at least one person and does not harm any other; a free exchange between two contractual parties is the paradigmatic example. The goal of achieving such possible outcomes (moving towards Pareto optimality) by government action when necessary offers “a minimal morally legitimate space for a minimal state, and no more.” It remains to be seen if the state can access this moral space. De Jasay’s answer is negative.

Social-Contract Theory and Social Choice

An important strand of political philosophy tries to justify politics with an implicit unanimous agreement of citizens on the rules guiding their behavior and the social choices to be made by the state. Such a social contract, the theory goes, is indispensable to protect private property, to enforce private contracts, and to produce so-called public goods. In mainstream economics, a public goods is defined as a good or service that everybody wants, is automatically available to all once produced, but cannot be supplied by private enterprise because free riders would not pay their share—think public security, for example. The prisoners’ dilemma is a game-theoretic representation of the purported impossibility of producing public goods in anarchy. Nobel economist James Buchanan was a major contractarian theorist.3 De Jasay argues that contractarianism is self-contradictory. An overarching social contract is deemed necessary because particular contracts would otherwise be non-enforceable, but the social contract is itself non-enforceable because nobody can enforce it against a state intent on violating it. Quis custodiet ipsos custodes?

Is it in any way conceivable that a social contract could be unanimously agreed on? This seems possible only if the rules it enunciates are very general and the contracting parties are more or less ignorant of their future interests. The second condition amounts to saying that they negotiate behind a veil of ignorance, as John Rawls would say,4 or a veil of uncertainty, in James Buchanan’s terms.5 De Jasay rejects these conditions. He argues that the choice of a decision rule is logically equivalent to the choice of its probable outcomes. But unanimity on an outcome is impossible if only one individual thinks it would harm him. In my opinion, the debate on these issues is not settled, but de Jasay’s formulation is enlightening.

As a constitution, the social contract establishes the rules according to which political decisions (social choices) will be made. Instead of a limitation of politics, de Jasay sees the social contract as a license to make social choices. It is not the first time that the author of Against Politics turns a standard argument on its head!

He offers another intriguing idea: to the extent that the state and a social contract is desirable, he compares the modern social contract to the medieval idea of a contract of government. In the latter, government is a contractual entity instead of being a creation of society; society is the other party. Through the power of feudal orders and the towns, enough armed force remained in society to enforce any implicit agreement between the sovereign and “society.”

An important criticism of the social contract is that it won’t eliminate free riders but, on the contrary, multiply them. A public good, de Jasay argues, is simply a good produced or financed by the government and made accessible to everybody at a zero or subsidized price. Public provision breaks the link between contribution and benefit. Since the marginal cost of consuming more of a public good (in this sense of something supplied or financed by government: think about “free” health care) for an individual is zero for all practical purposes, everybody will try to free ride by getting as much as possible. Government does not solve the public goods problem; it deepens it.

Is Limited Government Possible?

De Jasay contends that in a regime of social choice—that is, of non-unanimous decisions imposed on all—limited government and individual sovereignty are impossible. Politics will lead to redistributive coalitions vying to get more money and privileges from the government—that is, from fellow citizens. Entitlements will tend to grow uncontrollably. A constitutionally restricted domain cannot be imposed on the government. If a decisive coalition (generally 50%+1) wants a constitutional modification beneficial to itself, it will get it, if only through reinterpretation of the existing rules. Qualified majorities will not change that, for their members can be bribed into changing sides. Under democracy, the constitution that will come to prevail will allow a bare majority to rule over an unrestricted domain. The reader will recall that a powerful counter-argument remains that of James Buchanan and Gordon Tullock in their seminal The Calculus of Consent.6

De Jasay may underestimate the cost of building a ruling coalition, especially under uncertainty, as well as the cost of transactions among social groups. Yet, constitutional history over the past 100 to 150 years certainly does not refute his theory. “Private fortresses” against popular sovereignty have been dismantled. De Jasay’s melancholy is contagious:

• It is to history taking its time that we owe thanks for the brilliant but passing nineteenth-century interlude in Western Civilization, with limited government and assured-looking private sovereignty of everybody’s own decisions over crucial domains of economic and social life.

Principles of Philosophical Anarchism

The author of Against Politics defends anarchy as the theoretical solution to all these problems of the state in general and the social contract in particular.

Iconoclastic as he often is, he criticizes “freedom-talk” or “rightsism,” which implies that anything not specifically permitted is forbidden, as opposed to the liberal ideal where everything not explicitly forbidden is allowed. In his theory, a right is simply a contractual benefit resulting from the voluntary assumption of a corresponding obligation by a contractual party. A liberty is everything one can do without violating a specific obligation one has and without interfering with the exercise of somebody else’s equal liberty. Such interference is a tort, which implies some harm different from an insignificant externality.

A high point of the book summarizes the liberal case in three principles of political philosophy presented as the basis of the classical liberal logic. “In case of doubt, abstain,” is the first principle. There is no justification for political authority to intentionally and directly harm, or to risk harming, some individuals in order to benefit others. This principle, de Jasay notes, “would compress politics to the vanishing point.” It is equivalent to a presumption against coercion or, alternatively, to a social convention of live and let live when it involves no harm to others. It is a value judgement, for sure, but it “demands far less of our moral credulity” than other rules of moral and political philosophy.

The second principle is that “the feasible is presumed free;” that is, “a person is presumed free to do what is feasible for him to do” if it does not contradict his own voluntarily-assumed obligations nor causes specific harms to others. This presumption of liberty is supported by an epistemological argument: “… the list of feasible actions is indefinitely long,” while listing prohibitions is possible. The contrary presumption could prevent any action because it is impossible to prove that it will be harmless, while it is not impossible to prove a specific harm ex post facto if there is one.

The third principle, “let exclusion stand,” legitimizes private property obtained either by original possession or by contract. Property is not a social privilege that needs to be defined by the state. There is no common pool of wealth belonging to society and waiting to be distributed. Each past contribution to the creation of wealth—say the house a contractor built for your parents—has been paid for “and has duly left its permanent mark on the ownership structure.” All property is accounted for. Nothing is owed to society, because “no payment must be claimed twice.” This brilliant argument against a common social pot, however, seems to contradict de Jasay’s later suggestion of a possible liberal argument against immigration, namely that “the country is … the extension of a home”! 7

The Workings of Anarchy

How would anarchy work? There is no reason, de Jasay suggests, why at least some public goods could not be produced privately in response to the demand of those individuals who want them most. Let the free riders free-ride. Moreover, every good is excludable at some cost; “exclusion cost is a continuous variable.” Excludability depends only partly on the physical characteristics of a good. The difference between a state-dominated society and an anarchic one is that in the former, the link is broken between contribution and use, thereby creating more free riders—an interesting argument I already mentioned.8

Individual actions in an anarchic society would be coordinated partly by conventions, that is, spontaneous social rules, notably for the respect of property and reciprocal promises. But how would the most important of these conventions be enforced under ordered anarchy? Spot contracts are self-enforcing, but contracts with non-simultaneous performance (say, buying for later delivery) require a satellite convention of enforcement. Absent the state, who will be the enforcers? The answer lies, de Jasay argues, in the value of reputation for anybody in constant economic and social interaction—a repeated game in the terms of game theory. The victim of contractual default may have to pay enforcers (similar to repossession companies nowadays), but his fellow businessmen also have an interest in helping him through discrimination, ostracism, or other sanctions, as they will partly internalize in their own contracts the benefit of reduced defaults. Related conventions may develop.

But what happens in a large modern society where most transactions are impersonal and anonymous? In reality, de Jasay counters, large groups are aggregations of small, overlapping groups, and “a complex and dense web of communication” buttresses the value of reputation. Few exchanges are totally anonymous: “Many supermarket customers are unknown to the checkout girl. But they pay before rolling out their trolley. If not, they produce a credit card; and the credit card company is not unknown.” Today’s online commerce reinforces this important point.

De Jasay suggests that, following David Hume, we can suppose that property and contract are antecedent to government, which is thus not indispensable for protecting the former.

Conclusion

Anthony de Jasay’s are serious claims. He admits, however, that “an anarchic society may not be well equipped to resist military conquest by a command-directed one.” This raises a major argument against anarchy. I would add that we don’t have any experience of anarchy except in primitive, pre-state societies, where the results were not exactly stateless nirvana. Today, states cover and share the earth, forbidding anarchic societies as potential competitors. At least for this reason, humans are most likely to live under politics for some time. Must we not therefore try to find ways to limit state power and politics in order to preserve and strengthen individual liberty?

A related problem is that formal liberty under the rule of law including procedural rights (due process) is worth maintaining and strengthening, as they would be in some way under anarchy. On this point, perhaps de Jasay should have taken Friedrich Hayek and James Buchanan more seriously.

Yet, Against Politics is a must-read for any political philosopher as well as for any economist interested in the philosophical implications of what he or she is doing. The book may become even more urgent for our descendants to read.

Footnotes

[1] Against Politics: On Government, Anarchy, and Order, by Anthony de Jasay. Routledge, 1997.

[2] Anthony de Jasay, The State, (Basil Blackwell, 1985; Liberty Fund, 1998). See also my Econlib review: “An Unavoidable Theory of the State” Library of Economics and Liberty, June 4, 2018.

[3] See notably James Buchanan’s The Limits of Liberty: Between Anarchy and Leviathan (University of Chicago Press, 1975; Liberty Fund, 2000); see also “Lessons and Challenges in The Limits of Liberty,” Library of Economics and Liberty, Nov. 5, 2018.

[4] John Rawls, A Theory of Justice (Harvard University Press, 1971).

[5] Geoffrey Brennan and James Buchanan, The Reason of Rules: Constitutional Political Economy (Cambridge University Press, 1985; Liberty Fund, 2000). See also my review: “Constitutional Democracy: Is Democracy Limited by Constitutional Rules?” Library of Economics and Liberty, Jan. 2, 2023.

[6] James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (University of Michigan Press, 1962; Liberty Fund, 1999). See also my review: “The State Is Us (Perhaps), But Beware of It!” Library of Economics and Liberty, Jan. 3, 2022.

[7] Anthony de Jasay, “Immigration: What is the Liberal Stand?” Library of Economics and Liberty, August 7, 2006.

[8] This part of de Jasay’s thesis is elaborated in his Social Contract, Free Ride: A Study of the Public-Goods Problem. (Oxford University Press, 1989; Liberty Fund, 2008). See my review in Regulation, Vol. 47, No. 1 (Spring 2024), pp. 60-62.