In a 2015 discussion at Liberty Matters, I commented on Anthony de Jasay’s work under the title “tricks or treats”. Looking back, it seems to me that I could have used the metaphorical distinction of tricks and treats to point out more clearly what unites and what separates the libertarianism of James M. Buchanan and Anthony de Jasay: Both thought of life in a WEIRD (Western, Educated, Industrialized, Rich, Democratic)[i] society as a “treat,” while issuing libertarian warnings against the “tricks” of government expansion in these societies.[ii] But Jasay classified contractarian arguments as “theoretical tricks” that would in fact contribute to eroding the “practical treats” of limited government, while Buchanan subscribed to contractarianism as a “theoretical treat” that would help to avoid the “tricks” that unleash government in practice.

Their basic libertarian consent on many policy issues notwithstanding, Buchanan and Jasay were separated by their contractarian and anti-contractarian “opinions,” respectively. Since “it is on opinion only that government is founded”[iii] and since “opinions of legitimacy” are founded not only on tradition but also on supportive theoretical narratives, it potentially matters whether a contractarian or an anti-contractarian theoretical narrative is invoked in forming opinions concerning the (il-)legitimacy of state action.

Impressed by the American Federalist tradition of constitutional democracy, Buchanan sought to provide “logical foundations of constitutional democracy”.[iv] But he did not only regard his preferred contractarian justification of constitutional democracy as normatively compelling;[v] he also tacitly assumed that contractarianism, to the extent that it would as a matter of fact be incorporated into prevailing political opinion, would contribute to the political aim of limiting the expansion of discretionary powers of democratic government.

In Jasay’s eyes, Buchanan’s contractarian logic is flawed since “conceptual unanimity of all citizens” necessarily rests on contrary to fact assumptions. Coercion of concrete individuals does not become less real if a fictitious “representative” individual or the collectivity of all individuals in fictitious “conceptual unanimity” could conceivably “authorize” it. Beyond this conventional (“Humean”) criticism, for Jasay the empirical psychology tacitly underlying Buchanan’s contractarianism seems precarious: persuading citizens that the time-honored maxim of “volenti non fit iniuria”[vi] can apply to government coercion has the effects of a tranquilizer that makes them feel good by putting their anti-coercive instincts to rest.

Though he shares Buchanan’s libertarian end of controlling and restricting the sphere of state action, Jasay does not think that propagating contractarianism is conducive to that end.[vii] Buchanan is a reluctant moral archist who believes that fundamental government coercion can be justified by the consent of the governed while Jasay is a moral anarchist in that he believes that government coercion cannot be justified by the voluntary consent of the governed. Contrary to political anarchists, Jasay acknowledges that anarchical violence against a particular state order will merely give rise to another coercive state order rather than to a situation with no state at all. Contrary to moral archists Jasay thinks that denying the moral legitimacy of the state is morally and politically a better defense of liberty than contractarianism.

In sum, in Jasay’s eyes the fact that after the state has been invented it will not go away, is an empirical rather than an independent consent-based normative reason for acquiescence with the political status quo. In particular, in the case of states in WEIRD societies, violence against the state would lead in all likelihood to worse states. Still, acquiescence with what we cannot prevent, is different from endorsing a rule of recognition[viii] that ratifies what is unavoidable as if it were a normatively legitimate result of consent. To the extent that the latter becomes part of the rule of recognition of a society it operates in truth as a rule of submission: as an ideological “false belief” that facilitates the growth of the discretionary powers of the state rather than hindering it. Referring to state action as the result of “coercion” rather than of a “conceptual contract” may not only be theoretically but also practically preferable.

 

 

 

[i] See Joseph Henrichs. The Weirdest People in the World: How the West Became Psychologically Peculiar and Particularly Prosperous. London: Allen Lane. 2020.

[ii] The similarities of the basic logic of H. Geoffrey Brennan and James M. Buchanan. The Power to Tax. Analytical Foundations of a Fiscal Constitution. New York: Cambridge University Press. 1980 (reprinted as volume 9 of The Collected Works of James Buchanan. Indianapolis: Liberty Fund, 1999 ff.) and Anthony de Jasay. The State. Oxford: Blackwell, 1985. (reprinted as Anthony de Jasay. The State. Indianapolis: Liberty Fund. 1980) are quite striking.

[iii] See David Hume, David. Essays. Moral, Political and Literary. Indianapolis: Liberty Fund. 1985, essay iv.

[iv] As the subtitle of the “Calculus” runs; see James M. Buchanan and Gordon Tullock. The Calculus of Consent – The logical foundations of constitutional democracy. Ann Arbor: University of Michigan Press, 1962 (reprinted as volume 3 of The Collected Works of James Buchanan. Indianapolis: Liberty Fund, 1999 ff.)

[v] Even where he spoke of “the limits of liberty” the dual problem of the role of government was always center stage as well; see Buchanan, James M. The Limits of Liberty. Chicago: University of Chicago Press, 1975 (reprinted as volume 7 of The Collected Works of James Buchanan. Indianapolis: Liberty Fund, 1999 ff.)

[vi] “One cannot be wronged by what one has ratified by one’s own voluntary assent”

[vii] Wilhelm von Humboldt’s “The Limits of State Action.” Liberty Fund. Accessed April 16, 2021. https://www.libertyfund.org/books/the-limits-of-state-action/ is discussed in this Liberty Matters.

[viii] In the sense of Herbert L. A. Hart. 1961. The Concept of Law. Oxford: Clarendon Press.

Hartmut Kliemt is a retired professor of philosophy and economics of the Frankfurt School of Finance & Management and guest professor for behavioral and institutional economics, Justus-Liebig-University, Giessen, Germany.