A collection of published and original articles, the book contains many repetitions, which often help comprehension but sometimes in a disorderly way. If we were to construct a linear argument from the book, it might go this way: Equality and social justice as ideals are at best meaningless. Conventions provide the best solution to the problems of social cooperation, and embody the presumption of liberty. This presumption is opposed to “rightsism,” the modern notion that individual rights must be explicitly delineated. A consensual social contract does not explain anything and is not required for the production of public goods. In reality, the state naturally maximizes its power and individuals will surrender to it, often inadvertently.

Like de Jasay’s other works, this book is challenging for the conservative, the classical liberal, and the libertarian alike.

Equality and “social justice” / De Jasay notes that “equality” cannot be a criterion of distribution because its value is not self-evident: “ ‘Equal’ is not self-evidently superior to ‘unequal’ the way ‘good’ is superior to ‘bad’ or ‘ample’ is to ‘scarce,’ ” he writes. Simple equality, according to which two individuals are equal along some dimension, implies that they are not equal along other dimensions: “To each according to his work,” say, means that individuals are not equal according to the size of their families, their needs, their merit, etc.

“Fairness” is an empty concept too. An extraordinary observation of de Jasay is that a word for this concept “exists only in English and has not even remote foreign equivalents.” In French, for example, there is just one word, juste, for both “just” and “fair.” In sum, “fair” does not mean much more than “nice.”

To justify egalitarianism, utilitarianism will not work either. It relies on gratuitous assumptions like interpersonal utility comparisons, which are nothing but the “personal value judgments of whoever is doing the comparison.” Similarly, “equality of opportunity” cannot give a real content to egalitarianism. “In the limit,” writes de Jasay, “opportunities would become worthless as they become equal.” To appreciate this, think of the opportunities that would be offered by a doctoral degree if everyone were to have one.

In short, imposing equality requires redistribution—that is, using force against the individuals who are on the wrong side of the redistribution principle.

“Social justice” comes to the rescue of equality. It allows equality to rise by itself like the Indian rope under the fakir’s magic:

The essence of the Indian rope trick in ethics, then, is surreptitiously to identify “equal” … with “just,” which is self-evidently superior to “unjust.” … The identification is rendered less brazen by appending “social” to “just.” … With equality identified as the defining content of Social Justice, it rises to the rank of a moral imperative in the same self-evident way as justice itself.

Conventions / Consider the proverbial “social cake,” which according to fashionable gibberish must be distributed in some way:

By the time the cake is “baked,” it is also sliced and those who played a part in baking it have all got their slices. No distributive decision is missing, left over for “society” to take.

By “justice,” de Jasay seems to refer to the classical concept: giving everybody his due. The rules of justice define a “ring fence” that “excludes wrongs, with every act one can perform while staying inside the fence being a liberty.” The main rule of justice must be “finders keepers” instead of equal sharing.

Social justice, on the contrary, has no rules. It is a series of conflicting claims. A claim of social justice “is simply a good try. Whether it is satisfied depends on the politics of the time and place.”

Where do the rules of justice come from? De Jasay answers like Hume and game theorists: from spontaneously evolved conventions. The most important conventions are the rules against torts, which are enforced by satellite conventions.

In terms of game theory, conventions are “spontaneous coordination equilibria producing advantages for all participants.” “All conventions,” de Jasay explains, “are (Nash) equilibria.” They become self-enforceable because “rational individuals will find it worthwhile to find enforcing solutions to make worthwhile conventions work.” Game theory has shown that complex conventions can, over repeated interactions, solve difficult problems such as the Prisoner’s Dilemma.

The set of spontaneous conventions, enforceable without a central authority, generate an “ordered anarchy.” Contrary to standard theorists like Buchanan, de Jasay thinks that ordered anarchy does not need to be guaranteed by the state. We observe this in the business world (where de Jasay spent much of his adult life after a short academic career and before becoming an independent scholar). Looking at history, “the overwhelming evidence is that essential conventions have in fact duly arisen and taken root in much the same form in all civilizations.”

Presumption of liberty / Conventions “contain within themselves protections and interdictions that political discourse likes to enumerate separately as achievements of the social contract or the constitution.” But they evolve from the necessity of avoiding wrongs instead of defining rights. Although the two processes, conventional and constitutional, may look similar, the difference between them has crucial implications in de Jasay’s theory.

De Jasay defines liberty or freedom (he uses the two terms interchangeably) as the set of acts that do not cause wrongs—that is, as everything not forbidden. Everything that is not explicitly forbidden is free to do or not to do, so there is a presumption of liberty. The inverse presumption, the presumption of unfreedom, would mean that “everything is unfree unless it is liberated for us by a specific presumption or right.”

Note also that there is no presumption of equality but, on the contrary, a presumption of inequality, for “in the real world all men are created unequal to varying degrees.”

“Rightsism” / One of the originalities of de Jasay’s political theory is its attacks on the idea of rights and the system he calls “rightsism.” A system that runs in terms of permissions, such as bills of rights, favors the presumption of unfreedom: when rights have to be defined, they are naturally seen as exceptions. “Everything that is not explicitly authorized is (liable to be) prohibited.”

Rightsism ignores previous property titles, hence the absurd theorizing about how to divide a cake that somebody somewhere has baked. Property is not a right but a liberty. A property right or property title is very specific to a thing that has been created or acquired, and it generates obligations. In an exchange, the acquirer has to pay compensation to the former owner. In any event, nobody must interfere with the enjoyment of a property right. The “rights”—or “human rights”—of rightsism are spurious because, contrary to ordinary contractual rights, they create no visible obligation: “Rightsism gives without taking, or at least without taking visibly.”

Contrary to a contracted right, human rights are positive rights that demand redistribution. If they are not illusory, they are privileges that require political authorities to “proclaim and confer them.” Again, they represent a presumption of unfreedom.

Instead of rights supposedly favorable to liberty, de Jasay wants us to think in terms of wrongs against liberties, the latter being presumed valid until proof of the contrary. This is precisely what conventional rules do: they define wrongs because they are geared to maximizing mutual advantages and preventing anything that threatens these.

Liberalism in the classical sense has been corrupted by “liberal democracy,” which tends to be a very redistributionist regime. In Social Justice and the Indian Rope Trick, de Jasay presents himself as a classical liberal defending “the liberal principles we share.” It is a very libertarian version of classical liberalism, although many libertarians would object to different aspects of de Jasay’s theory.

The state / De Jasay strongly criticizes social contract theories, according to which citizens ostensibly consent to government rule. What they really consent to is far from clear: “The social contract differs in its outward form according to who, in the long list of its authors from Aquinas to Rawls, is providing the text.” In order to justify unanimity as an essential feature of the social contract, modern theorists concoct an original position where individuals ignore some relevant features of their respective future. This trick, de Jasay argues, amounts to imagining the social contract as “an agreement of one standardized person with himself.”

A logical reason also vitiates the idea of a unanimous social contract: the signatories can do what they unanimously want to do without a social contract. They would do it because, by hypothesis, they are able to reach unanimity among themselves.

What the social contract does is legitimize collective choice and thus government coercion. It prevents resistance by making people believe that the state they have is what they would have rationally chosen. “Religion, it has been asserted, is the opium of the people,” writes de Jasay. “Should not someone announce now that social contract theory is its valium?”

The social contract is redundant, we gather, because public goods (goods and services that provide indivisible and non-excludable benefits to all individuals) can be produced without it. Free riders are not really a threat. “A fairly plausible argument,” writes de Jasay, “shows homo oeconomicus willingly acting the sucker under far from extravagant assumptions and without his having any care for solidarity, decency, or the semblance.”

De Jasay gives the example of a dam to protect a town from floods. Let somebody propose a conditional contract for voluntary contributions, stating that the dam will be built only if the full amount of money necessary for its completion is raised. Any potential free rider realizes that his refusal to do his part in the financing will prevent the dam from being built. He is thus incited to contribute up to the amount the dam is worth for him. It is really in the interest of the potential free rider to act like a potential sucker.

Punters and pathbreakers will want to take their chances in initiating cooperation. In another interesting argument, de Jasay shows how this applies to the “Ultimatum Game.” In this experiment, a Proposer is given a certain amount of money and can offer a Responder whichever proportion of it he decides. If the Responder agrees, they both get the proposed share; if he refuses, nobody gets anything. Laboratory experiments have shown that the share proposed and accepted is generally not 50 percent, nor is it just a tiny amount that, we may think, the Responder would accept rather than take nothing.

To explain this result, writes de Jasay, “It is not necessary to have recourse to an assumption of love of fairness.” The Proposer simply guesses the odds of different proposals being rejected and the Responder bets on the chances that his refusal will send the right signal to any future Proposer. The lower the Proposer’s offer, the lower the cost of the Responder to bet on the benefits of a refusal.

Given such mechanisms to overcome public-good problems, not much room, if any, is left for the state. What the state does in reality is to use intimidation and allegiance to maximize its discretionary power. This maximization is “the point of sovereign command, of being the state at all.”

In contrast, the ideal state would be an “antistate”:

The minimal state, if it existed, would be an antistate actor whose rational purpose would be the opposite of that of the state, preempting the place that a state can otherwise take and expand in.

How did we ever get stuck with the state? One reason is that free-riders want redistribution in their favor. Another reason is usurpation and conquest, as Hume thought.

People often surrender their freedom to the state inadvertently. The social contract and constitutional mysticism fool people into submission. A constitution is a self-imposed constraint that helps the state buy allegiance, minimize resistance, and optimize its power. The liberties that constitutions safeguard “are those that the state is fairly willing to remove from the competence of the collective choice.”

Unfortunately, the prospects for ordered anarchy are dim. “History,” de Jasay writes, “seems to demonstrate that a society of perfect freedom, immune from the habit of collective choice, perdures only for small and very poor societies of simple design in relatively geographical remoteness that isolates them from other societies.” But this is not “an incontrovertible corollary of the human condition,” he suggests; the emergence of the state “is a matter of ‘constant conjunction’ [quoting Hume] that has always occurred but may or may not occur again in the future.”

Logic and epistemology / Social Justice and the Indian Rope Trick is a book of political philosophy well informed by economics—like the rest of the author’s work. The theory is very persuasive and “makes a lesser demand on our credulity and wishful thinking.” De Jasay asks us to economize on ethics and reject moral gullibility.

Take the presumption of liberty. Where does it come from? De Jasay argues that we must rely on presumptions because moral arguments are not conclusive (as shown by the history of philosophy and politics). But why the presumption of liberty and not the presumption of unfreedom? The former, he explains “in no way depends on the love of freedom. It is a pure product of logic and epistemology.” There is an “asymmetry between two forms of validating a statement, namely validation and falsification.” Under the presumption of freedom, somebody who objects to a specific act can hope to prove, if it is the case, that the act creates a wrong to himself. Under the presumption of unfreedom, on the contrary, it is generally impossible to prove that a specific act will do no wrong, for it may have a very large number of complex or unknown consequences, each of which would have to be proven harmless.

Quibbles and questions / As instructive as it is, the book leaves some questions unanswered.

The first is, how would a society based exclusively on evolved conventions avoid stifling traditions? As we saw, de Jasay admits that anarchy historically “perdures only for small and very poor societies of simple design.” But he glosses over the problem. What seems to have happened is that violence was endemic among primitive men and that, in order to organize and control it, stifling traditions were needed and were enforced by bans or other dire punishments.

Anthropologist Adamson Hoebel notes how anarchic Eskimo societies were coordinated by customary rules, taboos, and fears. “We don’t believe; we only fear,” said the wise man of an Eskimo tribe. Another Eskimo explained the anti-rationalism of this culture: “Too much thought only leads to trouble…. We are content not to understand.” Infanticide, invalidicide, senilicide, and suicide were encouraged. For example, a Labrador girl “was banished in the dead of winter because she persisted in eating caribou meat and seal together,” a taboo violation that was considered to endanger the whole community.

Primitive societies are not entrepreneurial or culturally rich, either.

De Jasay believes that bills of rights are “logically a by-product of an underlying presumption of unfreedom” and serve to elicit allegiance and boost state power. We must recognize this danger, but who would argue that many liberties guaranteed by the American Bill of Rights—think of the First and Second Amendments—would not be in even more dire shape if they had not been constitutionalized? Constitutions and bills of rights are certainly no sure bulwarks, but the more constraints put on Leviathan, the better.

The next question—actually, a set of questions—relates to contractarianism. Is a social contract really conceptually redundant? Can individuals engage in collective action without a founding near-unanimous agreement, if only tacit? The answer seems to be: only if there are no free riders when it comes to financing the (admittedly rare) public goods. But if these free riders exist, some more general agreement framework—like Buchanan’s constitutional first-stage agreement—may be needed.

The third question brings us back to the recurrent problem of public goods. There is no doubt that the concept of public good raises major problems. It is difficult if not impossible to find anything that literally everybody values and would be willing to pay for instead of going without it. Yet, it seems that some goods and services are wanted by the near-totality of non-suicidal individuals: think of the protection against antibiotic resistance or crashing asteroids. Public goods may be only near-unanimously beneficial, but so are many conventions.

Can all public goods be privately produced, as de Jasay believes? His own example may not be as conclusive as he thinks. He assumes an “ideal size of the dam,” which assumes indivisibility in production (and not only in consumption, as by the definition of public goods). If the dam can be higher or lower depending on the desired level of risk protection, then it becomes in the interest of many free riders to withhold their participation in a conditional contract as a dam one fraction of an inch lower will not materially affect their risk while significantly diminishing their financial burden.

This leads us to a fourth question: can national defense, which is a sort of public good, be produced privately – say, with conventions obliging individuals to contribute their share of militia duties? The concern that this question embodies is actually shared by de Jasay himself, who suggests that anarchic societies may survive only “in relatively geographical remoteness that isolates them from other societies.” He also invokes Hume, who asserts that quarrels between different societies could give rise to government.

National (or to speak more properly, territorial) defense is the elephant in the room. If protection against foreign tyrants is impossible without the state, we should abandon anarchistic dreams and focus on the minimal state as a protector of whatever anarchy is possible. De Jasay does not go that far, but perhaps he should. In a recent article, Hartmut Kliemt, a “reluctant anarchist” and professor of philosophy and economics, walks in that direction.

At any rate, Social Justice and the Indian Rope Trick is a must-read for every political philosopher and every social scientist. This is how the moral question of the state and anarchy should be discussed.

Readings

• “The Defensive State,” by Hartmut Kliemt. Independent Review, Vol. 20, No. 1 (Summer 2015).
• The Law of Primitive Man: A Study in Comparative Legal Dynamics, by E. Adamson Hoebel. Cambridge University Press, 1990.
• The Limits of Liberty: Between Anarchy and Leviathan, by James M. Buchanan. University of Chicago Press, 1975.
• The State, by Anthony de Jasay. Basil Blackwell, 1985. Reprinted: Liberty Fund, 1998.
• “The State and Public Choice,” by Pierre Lemieux. Independent Review, Vol. 20, No. 1 (Summer 2015).