Before Resorting to Politics, by Anthony de Jasay (1996)

N. Stephan Kinsella,
The Quarterly Journal of Austrian Economics Vol. 1, No. 3, pp. 89-92 (1998)

"...The most important and interesting essay of Part 2 is "Before Resorting to Politics" (chap. 8), which Jasay admits is "the book's most ambitious" (p. 6). In this chapter, he criticizes the consequentialism and other problems that, as he sees it, plague modern liberal theory. In its stead he "proposes three, admittedly sketchy, 'principles of politics,'" which are "entailed in the liberal ethic" and which must be incorporated into the foundations of any coherent liberal theory (p.147).

As noted above, however, Jasay does not seem to believe that normative propositions can be justified, and he does not really try to do so. He just uses the occasional "should" and normative premise where it is unavoidable, and appears to simply presume that the reader shares these (uncontroversial) premises, perhaps counting on the reader's own goodwill or love of consistency. For example, he merely asserts that "it is dubious in the extreme that a political authority is entitled to employ its power of coercion for imposing value choices on society ... and on individual members" (p.151). Yet the force of the normative concepts "dubious" and "entitled" here is diluted by the lack of even an attempt at justification.

Jasay's argument is thus a hypothetical one - and I am not sure if he would disagree, for I am not sure he thinks anything better is possible - for it relies for its persuasiveness on the listener already valuing (for some reason) the goals of justice, efficiency and order. Nevertheless, because most of these principles are certainly sound and justifiable anyway (for example, using Rothbard's or Hoppe's ethical theory), and because Jasay's critical and analytical skills are so acute, much of interest emerges from this essay.

His three principles of politics are: (1) if in doubt, abstain from political action (pp. 147ff); (2) the feasible is presumed free (pp. 158ff); and (3) let exclusion stand (pp. 171ff). The justification of principle (1) begins with a vigorous critique of consequentialism. Jasay notes that most political action requires assessing the worth or value of various policies. Drawing on the idea that interpersonal utility and values are incommensurate, Jasay points out that we can rarely know if any proposed government measure is really "worth it" or not (pp. 149, 151). Thus, government action, which necessarily employs the power of coercion, should be avoided where possible; the burden of proof should be on those agitating for it. This entails a corollary principle, "that applying coercion is legitimate when it is positively invited by the prospective coercee." (p. 156).

Next, in principle (2), "the feasible is presumed free," Jasay asserts that "the basic rule is that a person is presumed free to do what is feasible for him to do" (p. 160), as long as the proposed feasible action is not ruled out by his own obligations or the possibility of harm to others. We should live by right and not by permission, presumably in part because the former situation is more workable and efficient. If a feasible action is thus presumed free, then the actor need not prove that the action is permissible; rather, the burden is on him who challenges the permissibility of the action (ibid.). Otherwise, an actor might be unable to ever act since it would be essentially very difficult to prove a negative by showing that no one will be harmed.

Incidentally, Jasay offers an interesting critique of Nozick's conception of rights here. By viewing rights as "permissions" to do something, rather than as claims for performance by another, Nozick perhaps unwittingly endorses a system in which action is not presumed free, as action is undertaken with "permission" by others, which presumable must first be granted (p. 170).

I found the justification of principle (3) "let the exclusion stand" to be of most interest, especially the discussion of homesteading or appropriation of unowned goods. Jasay equates property with its owner's "excluding" others from using it, for example by fencing in immovable property (land) or finding or creating (and keeping) movable property (corporeal, tangible objects). Thus, the principle means "let ownership stand," i.e., that claims to ownership of property appropriated from the state of nature or acquired ultimately through a chain of title tracing back to such an appropriation should be respected.

The basic defense of the Lockean proposition that the first or original appropriator of property is entitled to appropriate it draws on his previous "feasible" principle (2) as well as his distinction between rights and liberties. Others have objected to the idea that one can appropriate unowned property on the grounds that such an action unilaterally (and thus unjustifiably) imposes on others moral duties to refrain from interfering.

The basic defense, however, is quite general and straightforward. It is that if a prospective owner can in fact perform it, taking first possession of a thing is a feasible act of his that is admissible if it is not a tort (in this case not a trespass) and violates no right; but this is the case by definition, i.e., by the thing being identified as "unowned." (p. 173)

Thus, by treating individuals as being free to act unless it contravenes a right (claim) of another, there is simply no reason not to allow a person to appropriate unowned property. For who could object, if not another, prior owner? To be entitled to object is to be able to "exclude" the claimant, but the right to exclude is an incident of ownership, and the property is by presumption unowned. No one can validly object to my appropriating unowned property, then, because, assuming feasible actions are free, any objection itself might claim a right, and this itself raises a type of ownership claim.

The beauty of this approach is that it avoids the troublesome "Lockean proviso" which allows homesteading of unowned goods only so long as "enough and as good is left to others" (p. 188, n. 15; see also 195). Nozick, on the other hand, allowed appropriation of an unowned object only if it did not worsen the situation of others. However, Jasay points out, in a world with finite resources, this condition would make it impossible for any unowned property to ever be used, since any appropriation causes a loss of opportunity for others to homestead the object and thereby worsens their situation. By contrast, Jasay's position "does not require that nobody loses as a result of first possession, as long as the losses were not vested interests" (p. 188, n. 15).

Jasay's application of his appropriation rule to two basic types of appropriation is also worth study. These two types are "finding and keeping" and "enclosure" (p. 174). The former appears to apply primarily to movable objects that may be found, taken, and hidden or used exclusively. Since the thing has no other owner, prima facie no one is entitled to object to the first possessor claiming ownership. Other grounds opposing this might be that the thing was found at least partly by luck, and was thus undeserved. But for this to be relevant, there would have to be a general rule requiring the lucky in life to compensate the unlucky. However, such a rule rests on an unsupportable assertion.

For immovable property (land), possession is taken by "enclosing" the land and incurring exclusion costs, e.g., erecting a fence. As in the case with movables, others' loss of the opportunity to appropriate the property does not give rise to a claim sufficient to oust the first possessor (if it did, it would be an ownership claim). However, for those who used to occasionally enjoy access to and use of the property, they do lose an actual benefit (pp. 176-77). Jasay admits that he cannot do full justice to this difficult issue, but offers a tentative solution. If some people previously used the property merely in passing, on an ad hoc basis, no right of theirs is violated by the homesteader enclosing it. However, if some identifiable, closed set of persons have used the property regularly enough to establish a precedent on which they rely, compensation must be paid them by the new owner (p. 177). (It is unclear why this regular use and "precedent" does not itself establish an ownership claim on behalf of the prior users; but Jasay is here speaking of borderline cases.)

Other chapters in Part 2 argue that rational choices by individuals in the state of nature can be expected to lead to enforcement of property rights and contractual promises (chap. 9). This chapter shows that James Buchanan's interpretation of Hobbes and history is incorrect, and that proper understanding of both supports the idea that markets can exist prior to and without states, contra Buchanan (p. 198). In the last chapter, "Liberties, Right, and the Standing of Groups" (chap. 11), one has to agree with his conclusion that "group rights" are problematic, and the proper bearers of rights are individuals."