The presumption of liberty
Perhaps no political philosopher has done as much painstaking work to review the legitimacy and need for political authority as Anthony de Jasay. What makes de Jasay’s work stand out is his ability to engage with the technical arguments of political economists and philosophers without sacrificing common sense. For example, de Jasay understands the complications of enforcing contracts without a state but never loses sight of the obvious point that a hypothetical contract to establish a state cannot be treated as an actual contract.
Anthony de Jasay is a patient thinker; his work makes the advocates of government look like raving fanatics, too impatient to appreciate the value of contract and convention, substituting coercion for agreement without examining their arguments and/or the operation of markets in great detail.
Unlike many other thinkers in this tradition, de Jasay is not a system builder. The bulk of his work involves the examination of arguments for government and the mechanisms of its operation when it exists. The lack of a normative case for liberty is not an omission, however, but deliberate. As should be evident from writings such as “Frog’s legs, shared ends, and the rationality of politics” (PDF) and “Values and the Social Order” (both reprinted in the book Against Politics), as a non-cognitivist, de Jasay does not find justificationism in ethics and political philosophy credible. Although the values we hold are often means to other (higher) values, going down the line we will arrive at a point where arbitrary, subjective preferences are the sole remaining reason for believing in something. This non-cognitivist position is not necessarily harmful to the cause of liberty because it undermines most, if not all, arguments in favor of political authority.
De Jasay believes that the decomposition of liberalism in the 20th century reflects “a design that positively invited tinkering.” As argued in great detail in his Choice, Contract and Consent: A Restatement of Liberalism, the progressive loss of rigor in liberal thinking reflects a tension between its two elements; maximization of a goal (freedom) and observance of a rule (no harm):
With regard to both freedom and the interests across which it must not trespass, one can only take positions that are ultimately subjective, ‘unprovable’, supported by intrinsically unwinnable, contestable, but unrebuttable arguments. Within these loose limits, disparate content can be read into freedom and nearly any interest can be claimed to be sufficient ground for an inviolable right.
A recurrent theme in de Jasay’s oeuvre is that liberty should be presumed, not because we have a “right” to it, or because it is the most important value or goal, but because it follows from the requirements of epistemology and logic. His current thinking on this has culminated in an essay called Freedom from a Mainly Logical Perspective (2005). In a nutshell, the argument (as I understand it), goes as follows:
There are two basic means of evaluating the truth of a statement, verification and falsification. The preferred choice between these two means should reflect the nature of the proposition at hand. If a claim is made that someone is not free to do something, the burden should be on the person who challenges that freedom. The reason for this is that the challenger needs only a strong enough case that at least one reason against the act in question is valid. If the burden of proof would rest on the person whose freedom is contested, the number of arguments that need to be falsified in order to prove that there is no good reason against it would be impractically large, or even infinite:
Even if an action is not challenged for ulterior motives or out of sheer busybodiness, the formal requirement to show that it would cause no harm and breach no obligation (i.e., that no one’s right could be opposed to it) is sufficient to stop any and all action and freeze everyone in impotent mobility.
The philosopher of science and critical rationalist Gerard Radnitzky was so impressed with de Jasay’s case for the presumption of liberty that he stated that “for the first time the political philosophy of libertarianism and of classical liberalism has gotten a solid base in logic and epistemology.” Instead of appealing to a person’s preference for liberty, logic dictates that liberty should be presumed:
Jasay’s argument entails the request to any rational being, in particular to legislators, not to request (in sincerity) what is logically impossible (like falsifying the objector’s claim that there is an obstacle to my doing X, when the list of obstacles is denumerably infinite or de facto inconsistent). This has nothing to do with value judgments: the logically impossible is literally “unthinkable,” since thinking and logic are two sides of the same coin. “Ought implies Can” is a descriptive statement.
The presumption of liberty is in harmony with the fundamental rules of action in Roman and common law in which the accused is considered innocent until proven guilty, and possession gives rise to title unless the evidence proves otherwise. Far from being a trivial principle, it is an antidote against the “rightsism” that pervades contemporary political culture:
“Rightsism” purports solemnly to recognize that people have “rights” to do certain specific things and that certain other things ought not to be done to them. On closer analysis, these “rights” turn out to be the exceptions to a tacitly understood general rule that everything else is forbidden; for if it were not, announcing “rights” to engage in free acts would be redundant and pointless. The silliness that underlies “rightsism”, and the appalling effect it exerts upon the political climate, illustrates how far the looseness of current liberal thought can drift away from a more strict structure that would serve the cause of liberty instead of stifling it in pomposity and confusion.
If having a “right to liberty” is an incoherent concept, and rights can limit freedom, what is the source of rights? Here de Jasay argues that the source of rights is contract; “the deontology of rights is their epistemology.” Leaving to the side the concept of “natural rights,” we can distinguish between rights that are created by political authority or rights that reflect contract. In both cases, the right of one person corresponds to an obligation of another person (or persons). But whereas rights that reflect contractcan be confirmed by the bearer of the obligation, this is often not the case with the rights that are created through the political process. Such rights are imposed through power and not acknowledged by both the right holder and the bearer of the obligation.
Does this mean that strict liberals cannot loyally accept the government of their country as legitimate, and are in effect advocating anarchy? Logically, the answer to both questions must be “yes,” but it is a “yes” whose practical consequences are necessarily constrained by the realities of our social condition. (Liberalism, Loose or Strict (PDF))
But who is going to determine when a liberty causes a harm or breaches a contract? It appears that de Jasay prefers these questions to be answered by common law and convention instead of government. Although such sponteaneous order may be “inefficient,” and sometimes “unfair,” this should be prefered over the political process which is intrinsically redistributive and nonunanimous. Without the prospect to secure private gain from the political process and to socialize its costs, the presumption of liberty may be secure for practical reasons as well.