The article is one of 16 reproduced in his 2002 book Justice and Its Surroundings. The book is a work of high political philosophy anchored in good economics and consistent with the real world. Although de Jasay is not a household name, he is arguably one of the most creative political philosophers and economists of the 20th and early 21st century. He defined himself as both a classical liberal and an anarchist. Whether the reader espouses or not the anarchist side of his philosophy, I don’t think he (or she, of course) can come away from this book with his previous ideas not affected in some way.

As its title hints, the book discusses justice and what surrounds it but is not justice. “If a thing is what it is, and not something else,” the author writes, “we ought not to call it by something else’s name or describe it by something else’s defining characteristics. … Justice is justice, and not fairness or equality of some kind.”

Needless state / We must not simply assume that justice requires redistribution of wealth and that the redistributive state is necessary. De Jasay builds on his previous demonstrations that the state is not required for social order because a spontaneous and non-imposed social order is possible. Property can be considered as the infrastructure of society and it is, with its consequence of commerce, “prior to political authority, to the state.” All-voluntary private relations and the all-coercive state are at the two extremes of a spectrum. He writes:

A strong state, supposing it is logically possible prior to an efficient economy, could find the wherewithal [to maintain order]; but no reason is furnished why it would choose to restrain from using this strength in ways that would probably be more harmful to an efficient market than the much-dreaded Mafia.

De Jasay notes that law, notably tort law and the law of property, was “historically prior to any proto statal authority,” notably in medieval Venice and Genoa, and in many Renaissance towns including Ghent and Bruges. The law merchant was “enforced mainly by peer pressure.” “It is as possible to say that states hindered, undermined, and retarded markets, as that they helped them,” he writes.

State coercion is not necessarily the only solution for the enforcement of private contracts. Simultaneous exchanges are self-enforcing: I don’t tender the money if you don’t nearly simultaneously give me control over the goods, like at a checkout counter. For exchanges where delivery or payment is delayed, a reputation of cooperation would often be sufficient to prevent default. When you order a good from Amazon and promise to pay for it, you know your credit card will be debited when the good ships, and you are virtually certain to get the good—and can even return it for reimbursement if you don’t like it. Would it be different if there were no government? De Jasay argues that a cooperative game is played in society, not a prisoner-dilemma game, and that subjection to a central enforcer is not necessarily required.

He argues that the traditional theory of public goods and their production by the state is problematic for many reasons. One is that the supposed market failure may be replaced by worse political failures, not to mention exploitative coalitions and a systemic bias toward the growth of the state. In a free society, schemes of voluntary cooperation for the provision of public goods are possible. De Jasay also repeats his critique of the social contract argument: “It is difficult to … assert in the same breath both that men need the state because contracts of mutual performance are undermined by the prisoners’ dilemma, and that the social contract is not so undermined.”

Floating externalities / The author of Justice and Its Surroundings argues that redistribution, far from delivering justice, is nothing but what the poorer half of voters decide to expropriate from the richer half. I think that even if this claim can be questioned in its extreme form—if only because the poor and rich do not act as anthropomorphic entities—it certainly explains part of what we observe. And claiming that the expropriators gain more in utility than the expropriated lose is just a subjective opinion, far from any logical theory of utility.

One redistributionist argument is that current incomes are in a large measure “attributable to an accumulated pool of tangible and intangible wealth” left by our predecessors. In this perspective, the current wealthiest people unfairly benefit from a sort of floating externality from previous generations, and everybody is equally entitled to this manna. De Jasay shows this argument is invalid. On the one hand, each contractual party (saver, investor, lender, etc.) who contributed to creating this supposed externality received what he considered sufficient consideration and he or his descendants are not owed anything. On the other hand, people who have benefited from these consequences of the past owe nothing to anybody. “Society” no more owns the putative pool of wealth inherited from the past than it owns the knowledge in the public domain.

There is no argument for “society” to redistribute what “it” does not own. The rightful owners of the fruits of the past “are those who, by no matter what combination of luck and desert, manage to internalize them”—that is, to use these benefits. For example, if I use the knowledge of finance developed by previous generations, the benefits I gain belong to nobody other than me.

As for the argument that redistribution benefits the rich or the better positioned because it allows them to keep part of their wealth or their situation in society, it cannot be true. Once the principle of redistribution is accepted, there is no reason why its beneficiaries would stop redistributing in their favor until complete equality obtains.

What is justice? / Since at least Plato, philosophers have probed the nature of justice. The answers proposed by mainstream theories of justice assimilate it to what social choice—that is, collective choices through elections and other political processes—decides. Mainstream theories of justice “merge the theory of justice into social choice theory,” according to de Jasay. In this view, justice is essentially what the state decides it is.

The central part of Justice and Its Surroundings develops a radically different theory of justice. De Jasay starts from a natural prohibition of torts, which are “non-trivial violations of the liberties of others” that are “recognized in immemorial and near-universal cross-cultural conventions”: murder, theft, or other violation of rights and liberties. He thus defines justice in terms of rights and liberties but, to avoid circularity, the definition of the latter must “not presuppose some prior account of justice.” He also avoids the usual philosophers’ recourse to natural law. Besides the protection against murder and theft, what are rights and liberties?

In an original typology, de Jasay considers a right as created by a voluntary exchange with a matching obligation. I lend you $100 for one year, and you agree to assume the obligation of reimbursing me $104 next year; thus, I have a right to $104 at that time. A liberty is something physically feasible that I may do if it is not a tort and does not violate an obligation I assumed. Property results from a liberty that one has chosen to exercise by exchanging something one owns for something somebody else owns. In a Lockean perspective but without the famous “proviso,” original appropriation simply rests on a liberty to appropriate something not already appropriated. Any voluntary contract coming after such appropriation is just. Justice is the distribution resulting from the totality of all just acts. It is voluntaryism. Justice in this sense is confirmed by empirical evidence given by actual voluntary agreements to create and transfer rights.

The distinction between, on the one hand, liberties as what is possible to do without directly harming others or reneging on previous obligations voluntarily assumed and, on the other hand, rights as the counterpart of obligations, is a powerful tool for developing a conception of justice that is non-circular, consistent with the real world, and liberal. It does not presuppose the existence of a state enforcer; whether it excludes a minimal state—what de Jasay previously called “the capitalist state”—may be an open question. Given that distinction, I think we can encapsulate de Jasay’s complex theory of justice in a combination of a strong presumption of liberty (or, in fact, liberties), spontaneous conventions as the foundation of law, and a strong respect for private property.

Liberties / Liberties allow for contract-created rights and other voluntary agreements. Everything is admissible that is not explicitly prohibited because it would constitute a tort, including a violation of a freely consented obligation. De Jasay justifies this principle with an interesting epistemological argument. The principle that everything feasible is admissible if not explicitly prohibited finds its justification in a simple fact: A near infinity of feasible actions exists and admitting the opposite principle—that everything is forbidden unless it is explicitly allowed—would require a near-infinite list of admissible actions. In practice, the principle “would freeze everything into total immobility.” Listing specific prohibitions is the only practical way for social life to exist. It is roughly the same as saying that justice is about prohibiting specific harms to others (torts). Every exchange is just unless it is proven to be non-voluntary.

In torts, de Jasay seems to include all offenses against person and property, probably some significant nuisances, and perhaps incivilities. He could have been clearer about that. He would perhaps answer that what is explicitly forbidden is a matter of convention. Is this a too easy way out?

Conventions / What de Jasay calls “conventions” is analogous to David Hume’s eponymous concept, to Friedrich Hayek’s spontaneous rules of conduct, and to Nash equilibria in game theory. Every convention that serves to maintain a social order exists as a fact. Every liberty is a fact and is only unjust if it consists in a demonstrable tort, including the violation of a demonstrable obligation voluntarily assumed. To be unjust is to commit an ascertainable unjust act toward somebody. When a social convention guides behavior, whether in matters of torts or civility (which passenger can take a vacant seat, for example), justice consists in following that convention.

Property / Benefiting from the presumption of liberty, one may own something unowned that he discovers or something that he obtains from its legitimate owner through a voluntary exchange or as a gift. This property principle corresponds to Cicero’s suum cuique, “to each his own.” A right of property comes from the exercise of one’s liberties. Conventions prevent significant harms by limiting liberty and property when they cause torts. There is no re-distribution, except through voluntary gifts. Note the central place of private property, not to be questioned except for factually demonstrable reasons. Although some may consider this idea “conservative,” de Jasay sees it as a consequence of the liberal presumption of liberty.

Justice as fact / An obvious implication of this theory of justice is that one can only be responsible for a state of affairs that one has caused, as opposed to the consequences of impersonal forces, whether natural or social. Note again how de Jasay can claim that justice is a matter of fact, not a matter of subjective and variable judgments: property (what someone controls) and the voluntariness of an exchange are verifiable; the existence of a convention is observable.

Problem of equality / Let’s come back to the surroundings of justice and the idea that justice is not about equality. There are indefinitely many ways of implementing equality in a group. For example, de Jasay asks, “Should everybody do military service, or only the young, or only able-bodied young males?” The answer depends on whether equality is defined along the criterion of age or sex.

Similarly, the idea of equal treatment (treat like cases alike), sometimes called the generality principle, “leaves the justice of a treatment indeterminate.” Treating all like cases alike is either a tautology or else “equal treatment of cases according to one variable will normally entail their unequal treatment according to other variables.” If it is a matter of symmetry between the like cases, why should income or other rewards be singled out as the relevant variable for nondiscrimination instead of “pain, productivity, opportunity cost, benefit, or something else?” “Before like cases can be treated alike, it must be decided which case is like which other case. … Ultimately, however, all such observations are intrinsically subjective and can be reduced to my say-so against your say-so.” All ideas of equality amount to a call for collective choice—that is, what the state decides equality means.

De Jasay does not believe in a general and formal equality before the law as the liberal state is called to provide. This is because there is no state in his theory. He might say that equality before conventions exists as a matter of fact. Many will find this to be a weakness of his theory, at least in a standard classical liberal perspective.

De Jasay criticizes the late political philosopher Brian Barry’s presumption of equality as neglecting “the Humean conventions at the base of civilized societies and productive economies,” notably property. Barry’s notion of justice amounts to saying, “Nobody owns the cake to be distributed, nobody has baked it, nobody provided the wherewithal for baking it.” Such a theory of justice is supposed to work without property rights or, at best, with very limited and weak ones. How, then, do we get enough production for those entitled to production without working for it?

Socialism / Besides equality in the abstract, we also meet socialism in the surroundings of justice. The command version of socialism is not efficient because there are no market prices to transmit correct signals on scarcity and demand. “Market socialism” has been proposed as an alternative that combines social ownership of the means of production, “equality at the starting gate” (equality of opportunities), and free markets for everything else.

But, de Jasay argues, these requirements are contradictory. Correct price signals cannot exist without markets for the means of production. Social ownership means in practice that the state is the owner and controller. The state is the agent of an abstract “society,” which generates a giant principal–agent problem and humongous inefficiency. Only a regime of private property is consistent with economic efficiency.

Equality of opportunities is inconsistent with markets. From the “starting gate,” writes de Jasay, one “can have a real race, or ‘fix’ the result, but not both.” If there is a real race in the sense of market competition, inequalities will develop and the result will not be egalitarian. If the result must be egalitarian in some sense, the market process must be constantly corrected by the state. If Taylor Swift starts the pop-singer race on the same line as everybody else, she will reach the finish line first, except if she has been handicapped again and again during the race. And, to go back to the cake analogy, it is unrealistic to expect that producers will continue to bake the same cake that will be later sliced and eaten by somebody else at the pleasure of collective choice.

The last chapter of Justice and Its Surroundings presents freedom as a bitter medicine because it implies responsibility for oneself and some insecurity. It requires resisting the temptation of social choice over questions of “who gets what.” Ignoring “the exceptional individual,” people don’t like this medicine, as shown by the whittling down of freedom over the “past hundred years or so” in democratic societies. De Jasay even found it surprising that “this freedom most of us do not really like is nevertheless holding its own.” As I mentioned before, de Jasay believed in 1995 that “in some areas collective choice seems to be restraining itself to give way to the operation of ‘hard,’ non-vacuous freedom principles.” That was the era of the so-called “Washington consensus” and a US president, Bill Clinton, who was certainly not a classical liberal but who now appears, with hindsight, to have been less dangerous to individual liberty than those who came after him.

Questions and critiques / As usual, de Jasay’s arguments are tight and challenging, if not persuasive. A basic question is, could we theoretically and beneficially do away with the state (the whole apparatus of political government) in favor of a spontaneous social order? A closely related question is whether the organization of our societies meets the requirements of justice.

The vast majority of (classical) liberal and libertarian theorists have answered no to both questions. De Jasay’s theory of justice offers strong critiques of standard liberal theories, including those of Hayek and James Buchanan. It is telling that, in reviewing de Jasay’s 1985 book The State, Buchanan recognized the significant challenge it represented for his own liberal-contractarian theory of the state. He wrote:

Somehow those of us who retain a residual faith in some positive potential for [the state] must meet the challenge posed by this book. We must, in some form or fashion, incorporate the descriptive features of the state, as depicted, into a coherent and nonromantic normative account of constructive reform.

Despite their disagreements, the respect is mutual. Justice and Its Surroundings contains a critique of Buchanan and Roger Congleton’s book Politics by Principle, Not Interest. Despite his fundamental criticism of a social contract à la Buchanan, de Jasay presents himself as a devil’s advocate who “would not be displeased if, on some judgment day, [his plea] were found to have failed and that of Buchanan and Congleton to have prevailed.” He later adds that he shares Congleton and Buchanan’s “political predilections.”

To summarize my main doubt about Justice and Its Surroundings, I wonder if de Jasay counts on conventions to do too much work in the establishment of justice. Buchanan’s question (which was addressed to Hayek) is relevant: How do we evaluate the capacity of a convention to support a free spontaneous order? And what is to be done if an illiberal convention develops? Is this not possible within the Jasayian system?

Even if one rejects de Jasay’s liberal anarchism, the book suggests a healthy skepticism toward the collectivist zeitgeist. It provides some guidance for more modest and urgent reforms in our own societies toward a strong presumption of individual liberty and a strict respect for private property.

Readings

• Buchanan, James M., 1986, “From Redistributive Churning to the Plantation State,” Public Choice 51: 242–243.
• De Jasay, Anthony, 1985, The State, Liberty Fund, 1998.
• Lemieux, Pierre, 2019, “A Conservative Anarchist?” Regulation 42(1): 32–36.
• Lemieux, Pierre, 2022, “An Enlightenment Thinker,” Regulation 45(1): 60–63.
• Lemieux, Pierre, 2024a, “Against the State and Its ‘Public Goods,’” Regulation 47(1): 60–62.
• Lemieux, Pierre, 2024b, “Princess Mathilde and the Immorality of Politics,” Econlib (blog), April 1.