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A nthony de Jasay died January 23rd at age 93. Although he is not a household name even among academics and intellectuals, he was one of the most creative thinkers of our time and I think he will be recognized as such by future generations.

He already has many fans among libertarians and classical liber-als. Perhaps, as we shall see, he should have more admirers amongconservatives, too.

He was an academic anomaly. His books, published by majoracademic publishers, and his scholarly articles were at the cuttingedge of political philosophy but he was not affiliated with anyuniversity and did not have a Ph.D. (which, at least in America, isthe membership card of the academic class). At age 23 he left hisnative Hungary to study economics in Australia and at Oxford.In 1962 he settled in Paris where he made a career in banking andfinance. He retired in 1979, moved to Normandy, and devoted therest of his life to independent scholarship.

I was privileged to know him personally, as he participated inseveral of the Liberty Fund conferences I directed in France from1990 to 2009. He was nearly blind for most of the years I knew him;his wife Isabelle would read aloud for him. Our last contact was inJune 2018. By that time, he had suffered a stroke from which hehad not totally recovered. On June 4, I published a review of hismasterpiece The State (1985) in the new Liberty Classics section ofLiberty Fund’s Library of Economics and Liberty. Two days later Ireceived a nice email from him, beginning with, “You have givenme great pleasure with your review of my book.”

THE PROBLEMS WITH THE STATE

De Jasay’s 1985 book set out the basic problem of the state, thewhole apparatus of formal government. The state cannot please

PIERRE LEMIEUX is an economist affiliated with the Department of ManagementSciences of the Université du Québec en Outaouais. His latest book is What’s Wrongwith Protectionism? Answering Common Objections to Free Trade (Rowman & Littlefield,2018).

(“bring utility to,” as economists would say) everybody becauseindividuals have different preferences. Whatever intervention thestate carries out, it will benefit some individuals but harm oth-ers. The simplest example is redistribution of money: it benefitsthe recipients and harms the coerced donors. Regulations andother interventions have a similar effect. The state is necessarilyan “adversarial state.”

Because individual preferences are subjective, there is no sci-entific way to weigh the costs and benefits of policy to all affectedindividuals and derive a net benefit or cost that is meaningful.Economics has been haunted by this problem for nearly a cen-tury but economists have generally tried to sidestep or ignore it.De Jasay took it seriously. Even if only one individual is harmedand countless others benefit, we cannot know if the utility (orsatisfaction or happiness) lost by the harmed individual is largeror smaller than the utility gained by the others.

Comparing the utility of two individuals, and a fortiori betweentwo sets of individuals, relies on nothing but the “personal valuejudgments of whoever is doing the comparison,” de Jasay wrotein his last book, Social Justice and the Indian Rope Trick (2015). (See

“The Valium of the People,” Spring 2016.) Putting a money valueon gains and losses from a government intervention does notsolve the problem; only an actual voluntary exchange can guar-antee that both parties gain.

As The State put it in immortal terms, “When the state cannotplease everybody, it will choose whom it had better please.” Thechosen beneficiaries will of course be the clients whose supportis most necessary to the state—that is, to the state’s politiciansand bureaucrats (including judges, prosecutors, policemen,and soldiers). The state buys the consent of the clients it needsin order to stay in power. The incipit of The State reads, “Whatwould you do if you were the state?” (de Jasay’s emphasis). Youwould, of course, try to increase or at least maintain your power,which is the proximate means by which to obtain money, perks,

I N M E M O R I A M

A Conservative Anarchist?

ANTHONY DE JASAY1925–2019

✒ BY PIERRE LEMIEUX

SPRING 2019 / Regulation / 35

access to people, and a host of sub-jective benefits.

A democratic state does notchange that. On the contrary, itis a formal feature of the demo-cratic state that it must satisfy (amajority of) the electorate. But themore it satisfies some voters at theexpense of the others, the moredissatisfied the others become. Ifit then tries to compensate thelatter, it will re-alter the distribu-tion of costs and benefits, makingmore people unhappy. The statehas no money but what it takesfrom its citizens. Its regulationsrarely—never, de Jasay would say—benefit everybody and leave no oneunharmed. Political competitionforces the state to run the redistri-bution machine to the point wheremost people are inextricably bothbenefited and harmed, and wherethe state uses all its power to satisfyinsatiable clienteles.

As time goes on, the statebecomes more and more of a redis-tributionist drudge. While its totalpower has increased, its dwindlingdiscretionary power is used just tostay in power. At some point it willhave no choice but to limit electoralcompetition and put all its formerclients under its yoke. Tyranny mustbe the ultimate outcome.

De Jasay exposed the concept of“social justice” as being nothing buta set of conflicting claims that putin motion and justify state redistri-bution. Some groups simply wantto grab benefits at the expense of other groups. For a while, themost powerful and influential win; ultimately, everybody losesexcept for state rulers.

HOW CAN SOCIETY WORK?

Can society exist without state laws and social justice? Or, asthe question is usually asked, if the state doesn’t make lawsand pursue social justice, who will? De Jasay argues for a theoryof justice based on evolved conventions that simply preventwrongs and thus circumscribe exceptions to a general presump-tion of liberty. The performance of promises and the rules ofproperty (including the principle of “finders keepers”) are such

conventions. Ownership is primafacie proof of legitimate propertyunless it can be proven that a spe-cific piece of property has been sto-len or is creating a nuisance.

Conventions solve the problemsof social coordination that can’t besolved by contract. By followingestablished conventions, individu-als contribute to the requirementsof social cooperation, as shown bygame theory in repeated interac-tions. Conventions solve prisoner’sdilemma situations (that is, situa-tions where individual rationalityleads to results that nobody wants).

One way to understand deJasay’s theory is to contrast it withthat of James Buchanan, the 1986economics Nobel laureate and prin-cipal originator of the public-choiceschool of economics. Buchananwrote in Public Choice a very favor-able review of The State despite thefact that it represents a major chal-lenge to his own political theory.

Like most economists, Buchananbelieved that “public goods” exist ,and they can only be produced orfinanced at an optimal level by thestate. The reason is that, by defini-tion, public goods are goods thateverybody wants but are non-rivalin consumption. For example,Buchanan would say, everybodyequally benefits from nationaldefense or (locally) from a flood-control dam once those goods areproduced. Free-riders will not payfor such goods, hoping that others

will. But then the goods won’t be produced at an optimal quan-tity—if at all. The state ostensibly has to intervene and tax peopleto produce what everybody wants.

De Jasay, on the contrary, argued that contractual meansand voluntary institutions exist to produce public goods. Manyconsumers will not want to risk the chance that a public goodthey want will not be produced, so they will not take the gambleto free-ride. Others might but, in the absence of a functioningmarket, there is no way to know what the “optimal” quantity of apublic good is. If there is “market failure,” it is not as dangerousas “government failure”—government-mandated, non-optimalprovision. One instance of government failure is that production

The more democratic govern-ment tries to satisfy some votersat the expense of others, the moredissatisfied the others become. Ifit then tries to satisfy the latter,

it will make others unhappy.

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I N M E M O R I A M

of public goods by the state brings the “return of the free rider”:the larger the state is, the more benefits it can offer, and the morecitizens will free-ride by minimizing their taxes and maximizingtheir receipt of state benefits (including subsidies). De Jasay’s 1989book Social Contract, Free Ride: A Study of the Public Goods Problemanalyzes these issues.

Another major point of discord between de Jasay andBuchanan is social contractarianism. Buchanan imagined animplicit, unanimous social contract that calls on the state toproduce public goods while at the same time limiting the reachof the state. De Jasay countered that if individuals are capable ofunanimously agreeing on a social contract, they also are able tocontractually agree to the production of the public goods thatsupposedly justify the social contract. He also argued that a pre-sumed social contract fools people into believing that they are, asit were, coerced by themselves, thusdisarming resistance and strength-ening Leviathan.

LIBERALISM, CONSERVA-TISM, ANARCHY

Where exactly does this put de Jasayon the political spectrum? Prod-ded by philosopher and economistHartmut Kliemt of the FrankfurtSchool of Finance and Manage-ment in a 2000 video by LibertyFund, de Jasay confessed, “Yes, I aman anarchist.” He might have wornthat badge more proudly had he notbelieved, speaking of “the few other anarchists,” that “many ofthem are crazy.”

In a 2014 email I asked him if he would accept the label “con-servative anarchist.” Without explicitly disavowing my proposal(on the contrary, he said that one of his grandsons had had thesame idea), he replied, “If I have to describe myself, I would saythat I am a modern liberal.” He later added, much in the veinof his conversation with Kliemt, that he did not like the label

“anarcho-capitalist” because, he said, “I do not wish to be countedas one of that company.”

By “modern liberal,” de Jasay meant “classical liberal,” but thelabel does not fit perfectly. He seemed suspicious of universalvalues, yearning instead for the close community where conven-tions can be voluntarily enforced. He was critical of codifiedrights and their supporting theories, which he pejoratively called

“rightsism.” He did not seem worried that his convention-basedanarchy could be unenlightened, stifling, and oppressive, whichmay be the Achilles heel of his theory. All that seems moreconservative than liberal.

I still believe that the label “conservative anarchist” partly fitshim. His defense of property also looks at least as conservativeas liberal. He invoked against immigration the strange argument

that a country can be viewed as “the extension of a home.” Insome cultural sense, he was a non-politically-correct conserva-tive. He did not try, like many libertarians, to be everything toeverybody. An example, which also illustrates his devastatinghumor, is found on the first page of Social Contract, Free Ride. Hisfirst generic “he” (“Nobody would suffer or profit from ‘spillovers’he did not cause”) directed to a footnote that read, “Wherever Isay ‘he’ or ‘man,’ I really mean ‘she’ or ‘woman.’” He once toldme that Murray Rothbard had said the book was worth its priceif only for that footnote.

THE PRIMACY OF ANARCHY

The conjunction of anarchism and conservatism may lookstrange, but classical liberalism and anarchism are clearly related.As Raymond Ruyer, the late French philosopher, wrote in his

1969 book In Praise of the ConsumerSociety (Éloge de la société de consom-mation), “Real anarchism, feasibleand actual, as opposed to mereemotional statements, is simply theliberal economy.” Another Frenchauthor, academician Émile Faguet,wrote in 1888 that “an anarchist isan uncompromising liberal.” Tonyis in good company.

The fraternity between anar-chism and classical liberalismsuggests a common denominatorbetween de Jasay and Buchanan,who also defined himself as a liberal.

For both theorists, the state is dangerous and anarchy would bethe ideal. Buchanan thought that a limited state was necessaryto protect ordered anarchy, while de Jasay believed that limitingthe state was a mission impossible. But both agreed with whatwe could call the primacy of anarchy. This provides us with aprinciple for evaluating all things political.

De Jasay went much further than Buchanan on the road toanarchy. The only state that could ideally tempt de Jasay was a

“preemptive state” or “capitalist state” or “minimal state.” He wrotethat such a state “would be an anti-state actor whose rationalpurpose would be the opposite of that of the state, preemptingthe place that a state can otherwise take and expand in.” Theminimal state would protect anarchy, if that were possible.

In a sense, de Jasay combined the best in classical liberal-ism, cultural conservatism, and anarchism. In that, too, heand Buchanan were similar. But de Jasay was not an optimist.He was not sure that anarchy could survive if it were to appearagain in the world as it appeared before in primitive societies.And constraining Leviathan, he argued, is impossible. I wouldsuggest that we should try, even while keeping the focus onanarchy as an ideal. In this task, the work of Anthony de Jasaywill be very useful.

If individuals are able to agreeunanimously on a social contract,

they are also able to contractu-ally agree to the production of

the public goods that supposedlyjustify the social contract.