Justice & its Surroundings (Collected Papers of Anthony De Jasay) - Softcover

Frankfurter Allgemeine Zeitung, Monday 10 November 2003, No. 261, p. 12

Translated by L. Dan Kirklin

Justice and Injustice

Anthony de Jasay does away with intellectual confusions

Anthony de Jasay: Justice and Its Surroundings. Liberty Fund, Indianapolis 2002, 321 pp., $10.00.

Anthony de Jasay is one of the most interesting political philosophers of the twentieth century. He studied in Australia, taught at Oxford University, was then an investment banker, and is now an unaffiliated scholar in France. The American Nobel Prize-winner James Buchanan wrote of Jasay's first book, The State, that it was a revelation for him. Despite having in the meantime published a whole row of books, in this country he is still considered something of a hot-tipster. If one wanted to characterize Jasay by means of an Anglo-Saxon label, then "libertarian conventionalist" might recommend itself: an economist of the Austrian School, with however a grounding in solid epistemological theory, in opposition to the apriorism [could be tr. "rationalism"] of the followers of Ludwig von Mises.

He is a "Libertarian," since he proceeds on the assumption that the individual is in principle free to carry out a particular action, so long as there is no valid objection to this action, and that the burden of proof lies upon the opposition, that is, upon those who maintain there are valid objections. And he is a "Conventionalist" in the sense that he considers a social order that is founded on contractual convention and reputation (justified ["reasonable"] confidence ["trust," "faith"]) to be a practical alternative to the State. Jasay's logic is flawless, his style masterful.

The title of the newest book describes exactly what it is about. The central essays, which concern themselves with justice ["fairness"], are surrounded by essays in which Jasay investigates the surroundings of justice: topics which intrude into discussions of justice and which are often confused with genuine problems of justice. Thus the author treats the State in the first part--and indeed under the programmatic heading "The Needless State." Jasay confirms Edmund Burke's dictum "Politics in itself is abuse ["misuse"]." From this follows the maxim: to keep the political sphere as small as possible. In the second part the author deals with Redistribution (governmental, compulsory) and from there proceeds to the central essay, "Justice." This is followed by the fourth part, "Socialism," and then the fifth, "Freedom."

In the chapter on justice Jasay makes the suggestion that the ambiguous and vague concept ["idea," "notion"] [i.e. of justice] of ordinary speech and politics be replaced with a concept that represents a better intellectual instrument for rational discussions. Because the colloquial usage of "justice" is a classic example of the political use of language and is thus accordingly confused, Jasay falls back on the philosophical discussion.

Individual actions are judged by the attribute "just/unjust." Two principles serve as a leitmotifs: the aristotelean "to each his own" and "equal cases, equal treatment." The connection between action and consequence (reward or sanction), between freedom of action and responsibility, stands in the foreground. The individual is responsible for his activity. The principle "to each his own" chimes for example when we ask, say, in the case of the chairman of a firm: "Does he earn what he earns?" (Does he deserve what he earns?) The second principle is indispensable for rational expectations and thus for the stability of a society. But what makes two cases "equal"? Jasay demonstrates that the problem is that of legitimizaing the criteria for the claim that two cases are, in relevant hindsight, equal.

The chapter preceding the central essay cleans up the messiness of the intellectual environment of the concept of "justice" and with the many suggestive definitions of the expression "just" justice as something else than justice--as for instance justice as "fairness" (according to John Rawls), justice as nonrejectability (according to Thomas Scanlon), justice as impartiality (according to Brian Barry). In Germany Rawls' theory enjoys ever greater popularity with, among others, economists. Its substantial content corresponds to the Social Democratic climate--in all parties.

The reception of Rawls' theory is typical for a place in which "justice" operates in the social environment. The expression "just" is now no longer applied to actions, but to conditions. Therewith a completely different concept from the original one gets slipped in. The condition of a society is described as "unjust" because it does not agree with a definite, preconceived normative ideal. With a rhetoric based on one of these holistic interpretations of justice, the redistributive governmental activity and the increasing share of taxes are represented as means by which injustices could be eliminated. State interventions mean in this [context] more compulsion and generally not good results, when for example the majority forces the members of the losing coalition to help finance projects that they themselves consider desirable (chapter 2: Taxpayers, Suckers, and Free Riders").

In the second part of the book, under the heading "Redistribution" ("Financial Balance"), a chapter is devoted to the arsenal on "injustice" "A Stocktaking of Perversities." In the third [should be "fourth"] part, on socialism, the same tack is taken by a chapter "Market Socialism," the idea of a "socialist market economy." There action [i.e. commerce] assumes the full sense of freedom, accepts the risk of failure, and to many freedom appears to cut both ways. The last chapter is called, then, "The Bitter Medicine of Freedom."

Contemporary political rhetoric even knows "social justice" without asking: What, then, makes a particular kind of justice social? And what makes so-called social justice into a variety of justice? The expression turns out to be an empty set phrase; ideological path-finders hustle to fill the empty word-husks with content. Politicians are even heard to talk of a "social-justice gap." Just so the Verdi CEO Frank Bsirske called for public investment on the basis of a "just" taxation. In short, "justice" plays an important role in pseudomoral power politics. Jasay's book helps everyone who wishes to think clearly in this area.

Gerard Radnitzky
Anyone with interests in philosophy, economics, political theory, or rational-choice analysis will profit from close reading and long pondering of de Jasay's arguments.

The Independent Review
Summer 2003
Anthony de Jasay is one of the few, truly original minds in contemporary social science. He is well-known for combining analytical rigor with a realistic approach to social phenomena-a rare quality, given that the industry of political superstitions, which has no purpose but to dress the emperor, is still working at full capacity.

Jasay has been opposing such a tendency for some time. His acclaimed book, The State (1985), perhaps the finest treatise on the subject, has opened the eyes of more than a few readers to the true nature of the institution par excellence, in the realm of modern political philosophy.

Five years after Against Politics (1997), a collection of penetrating essays, Jasay is back with Justice and Its Surroundings. This book, as the title proclaims, is dedicated to justice and to the issues that typically surround it: freedom, sovereignty, distribution, choice, property, agreement, et cetera.

Jasay bravely asserts that "by promoting clear thought . . .one would be doing a greater service to the good society than by promoting good principles" (vii). His goal is to resolve the tangle of definitions upon which some of the most common assumptions of political thought are based. If "a thing is what it is, and not something else," then, he trenchantly reminds us, "wealth is wealth, and not freedom. . .a freedom is a freedom, and not a right. . . justice is justice, and not fairness or equality of some kind" (vii).

This quest for clarity and rigor leads Jasay to scrutinize and refute not just theories elaborated by people with whom he is in substantial disagreement (such as John Rawls, to mention but one) but also the often confused and unsatisfactory theoretical options endorsed by people with whom he is supposed to be in substantial agreement (such as F. A. Hayek). Although Jasay has already devoted a chapter of Against Politics to criticizing some of the shortcomings of Hayek's mature political writings (his attempted synthesis of classical liberalism, as put forward in The Constitution of Liberty and Law, Legislation, and Liberty), here he deals in depth with the Hayekian approach toward redistribution.

Jasay focuses on Hayek's assessments of redistribution since he correctly points out that "the intellectual tolerance of redistribution, even in quarters where one would expect it to meet with severe condemnation" (for example, within the borders of those traditions of thought commonly labeled as "conservative" or "classical liberal"), "is a phenomenon worth closer analysis" (86). Hayek's political thought, notwithstanding his marvelous achievements as an economist, presents curious dichotomies, such as the one between coercive and non-coercive government actions (as though any policy carried out by government were not based upon a coercive transfer of wealth), which leads him to some bizarre statements. One of these is the well-known Hayekian assumption that taxation is not to be regarded as a coercive activity of government per se. Another one is the distinction he makes between two "concepts of security." One is "the assurance of a given minimum sustenance for all"; the other is "the assurance of a given standard of life." Basically, the latter is the kind of redistribution that Hayek rejects, while the former is what he accepts and praises.

This apparently small concession to the Zeitgeist is actually the first link of a chain, Jasay's view, at the end of which, Hayek endorses a system of compulsory insurance. He "seeks to separate compulsory insurance, and for that matter the provision of welfare in general, from redistribution, as if the first were logically conceivable-and practically possible-without the second" (89). Jasay's shrewd debunking of this naïve presumption is an example of sound scholarship and rigorous thought: "Believing that compulsory social insurance is at least potentially non-redistributive. . . is to miss essential features of it, It is a truism that in any insurance pool the premiums of some are 'redistributed' to pay the claims of others. Yet, there is a strong presumption that if the participants in the pool have freely agreed to pay the premium, they must have valued the insurance at least as high as its cost. . .Both classes of insured-those who did and those who did not claim for losses-made a Pareto-improving bargain. 'Subjectively'-and how else can the matter be evaluated?-no redistribution from one to the other took place" (90).

In striking contrast, "compulsory insurance. . . .is inevitably redistributive" (90), as Jasay shows in a tight analysis of the nature of insurance (see 90-93). These are but a few of Jasay's accomplishments in the second part of the book (precisely devoted to redistribution), where his dissection of causes and effect of "social insurance" and redistributive policies merges with demolition of political superstitions such as the one that "capitalism was saved by government's asserting novel powers to regulate it" (108).

Part 1 of Justice and Its Surroundings(significantly entitled "The Needless State") is devoted instead to the problem of social order, generally speaking. The essays here reprinted largely build on the insights of Jasay's Social Contract, Free Ride (1987), where he reformulated the problem of public goods and demonstrated that the state is neither necessary for the provision of public goods, nor could be the product of a "social contract."

According to Jasay, "the theory of the State, with strong consent to its authority, continues to be reproduced on the basis of a prisoners' dilemma whose social significance seems to shrink remarkably under an analytical stare" (43). But, he argues, public good problems are generally better understood as "hawk-and-dove" games, which have quite different payoff structures and incentives. "Unlike the prisoners' dilemma, the payoff structure in such an interaction can have mutual non-contribution (failure to produce the public good at all) in worst place, while the "sucker" payoff (contributing and giving others a free ride) moves from worst to third best. As a result, two pure strategies, the 'hawk' and the 'dove', would both be equilibria. The hawks take the chance on a free ride, assuming that enough doves will come forth to produce the good, and doves contribute unilaterally rather than take the risk of the good failing to get produced" (49).

The outcome is that, in fact, many public goods can be provided voluntarily. Also extremely relevant are the conclusions concerning the inner contradictions of contractarian theories of the state that Jasay derives from his game-theorectical approach (see, in particular, 51-53).

Parts 3 and 4 of the book are devoted respectively to "Justice" and "Socialism" (the chapter on "Market Socialism," 215-40, is a little jewel), while Part 5 collects three essays whose central topic is "Freedom." Jasay distinguishes between two concepts of justice, both of which are necessary for a system of justice to work, but neither of which should invade the other. "The two realms are ruled by two regulating maxims, 'suum cuique' (to each, his own) and 'to each, according to. . .' (that is, one reference variable). In the realm of 'suum cuique' the concept of justice leaves little space for judgments. Findings do nearly all the work. Where, on the other hand, 'to each, according to. . .' is the master rule, there is an irreducible role left to judgment" (143).

Jasay explains that "what a person owns is fundamentally a question of what, within his set of feasible acts, he is at liberty to perform" (155-56). The suum cuique form of justice is divided between admissible and inadmissible acts ("the general ground for inadmissibility is the prevention, frustration, or obstruction (without sufficient reason) of another's admissible act" (157); therefore, this stream of justice basically deals with liberties.

Here, particularly noteworthy is the bond Jasay creates between liberty and property. "If finding and appropriating what is unowned is a liberty," he comments, "abstaining from consumption is a liberty, and voluntary exchange is a liberty, then property is a liberty. Under suum cuique a person's property is his if and because the acts that led to his possessing it were his liberties" (162). The legitimacy of property is so to be derived from the chain of legitimate acts that brings an individual to possess a thing.

Jasay's book is a treasure of enlightening insights that, to be examined in the depth they deserve, would require more than this brief review. However, his "last word" on the contemporary doctrines of justice must be quoted: "Justice is upheld as far as it can be if voluntariness is safeguarded. It is then just acts that make for justice. The conformity of a state of affairs to a social criterion. . .is just that, conformity to the postula...