Strict contractarianism or anarchist conventionalism

The June 2011 issue of Economic Affairs features my review of Anthony de Jasay’s most recent collection of articles, Political Philosophy, Clearly: Essays on Freedom and Fairness, Property and Equalities.

As in all his works, in this book Anthony de Jasay uses a non-cognitivist knife to cut through all the incoherent, but influential, arguments about “fairness,” “rights,” and “the public good” that have been offered as a rationale for government.

As I note in my review, in this collection Jasay also offers his analysis of the State’s monopoly on the use of “legitimate force”, the taboo on “taking the law into one’s own hands” and its effects on crime. His analysis has similarities to what the conservative writer Samuel Francis has called “anarcho-tyranny”, a situation in which rules against violence, theft and vandalism are poorly enforced (or even deliberately ignored) but the coercive power of the state is used to engineer an egalitarian society and suppress freedom of speech.  Before Francis, these tendencies in modern liberalism were identified in James Burnham’s ‘Suicide of the West: An Essay on the Meaning and Destiny of Liberalism.

Until recently, I had a difficult time understanding Anthony de Jasay’s arguments against moral contractarianism. It seemed to me that Jasay could only conceive of contractarian arguments as arguments in favor of collective choice, ignoring thinkers such as the individualist anarchist Benjamin Tucker and, more recently, Jan Narveson, who use a contractarian framework to argue against the state. But upon more closely inspecting Jasay’s (increasingly) Humean ideas on justice I think I have a better understanding of what his fundamental objections against the contractarian approach are.

An important key to his objections can be found in the following quote from his book The State:

People who live in states have as a rule never experienced the state of nature and vice-versa, and have no practical possibility of moving from the one to the other … On what grounds, then, do people form hypotheses about the relative merits of state and state of nature? …

Anthony de Jasay’s starting point in social philosophy are the spontaneously evolved rules that facilitate mutual benefit. These rules were not “established” through a one-time agreement but through an incremental process of mutual adjustment by individuals. A danger of all forms of moral contractarianism is that it shifts the locus from such spontaneously evolved rules to subjective and arbitrary debates about what the terms of hypothetical contracts should be. For example, if we cannot agree to the terms of a social contract because some participants want a more interventionist state, should the social contract exercise be considered a failure or can the parties that want the least government interference just proceed and consider that person “outside” of the social contract? It is hard to imagine how such a question can be answered in a satisfactory manner from within the contractarian framework without introducing some kind of meta-contractarian framework, which in turn… and so forth.

The philosopher David Gauthier has argued that agreements that do not satisfy certain conditions (his revised Lockean Proviso) might be unstable because some people will have a strong incentive to ignore or re-negotiate them. It is quite conceivable that social contracts that do not reflect mutual advantage are inherently unstable and will be pulled towards less government, but ultimately such questions about stability can only be answered empirically.

In light of Jasay’s preference for actual contracts, as opposed to hypothetical contracts, I have often been tempted to call Jasay’s position “strict contractarianism” or “strong contractarianism.” Obviously, strict contractarianism is inherently anarchist because there is no way that any government can be considered to be “agreed to” by all the parties (and their descendants) who are presumed to be obliged to it, either explicitly or tacitly. Is the difference between strict contractarianism and conventionalism just semantics then? There is an important element in Jasay’s thinking that cannot be incorporated by any kind of contractarian thinking, and that is his refusal to place himself outside of society (or in the “state of nature”) in an effort to determine what the ideal terms of social interaction should be. It might seem strange to present this as a virtue but it would not surprise me that it is exactly this attitude that gives rise to what we would call a free society.