Despite losing his eyesight, Anthony de Jasay still publishes some of the most thought-provoking papers in social philosophy. In a recent article for the Institute of Economic Affairs, de Jasay inspects the foundations of liberalism and observes that:
In contrast to made law whose legitimacy is ultimately hypothetical, vulnerable to logic and cannot be confirmed, rules that arise spontaneously have the great strength of being immune to problems of legitimacy…The liberal principle of ownership is neither derived from nor enforced by any authority. Its content is a set of liberties the owner may employ, notably the liberty of use, usufruct, contract and disposition.
Building on these Humean concepts of justice, de Jasay is clear that liberalism, properly conceived, is not compatible with government and political democracy:
The term ‘liberal democracy’ has in recent decades become the standard way to refer to the liberal form of government. The first principles of liberalism are fully compatible only with ordered anarchy, a spontaneously emerging framework of conventional rules. Even imperfectly liberal orders are biased towards small government. Democracy has historically been associated with a dynamic, expansionary area of collective choice, in the shape of big government. Coupling ‘liberal’ and ‘democracy’ could hardly be more incongruous than ‘smallbig government’….Whether by conviction or by dire need, democratic governments are condemned by political competition constantly to press against the frontier that divides individual from collective choices. They must willy-nilly swallow up and regurgitate a part of the resources produced by society, a part large enough to attract a winning coalition in the face of competition by rivals similarly seeking to form a winning coalition.
In his recent publications de Jasay more explicitly contrasts the role of conventions with government-made law and contractarian approaches to justice. In one of his strongest essays to date, “Fairness as Justice,” he critically reviews game theorist Ken Binmore’s book Natural Justice and highlights the difference between bargaining and conventions and its consequences for the doctrine of fairness:
While bargaining solutions presuppose an intent to agree, conventions are adhered to without anybody agreeing with anybody else. Nobody intends to initiate them. They may be imagined to start from some random bunching of behaviour into a patterned subset within a patternless set of behaviour of the population…Justice in compliance with spontaneously emerging self-enforcing rules supersedes unenforced considerations of fairness; it does all the work in its sphere and leaves none over for fairness.
“Fairness as Justice” is included in Anthony de Jasay’s most recent collection of essays, Political Philosophy Clearly: Essays On Freedom And Fairness, Property And Equalities.