De Jasay concludes his essay on Hayek: his theory, he says,

leads straight as an arrow to the facile conclusion of an indispensable state that alone upholds property and contract. They exist by the grace of society acting through the political authority. They function as society chooses that they should.

The massive chorus we have been hearing from the left and center, chanting that property is a bundle of separable privileges granted and withheld by society, and the freedom of contract is subordinate to public policy, is vindicated by the very theory that should have prevailed over such a chorus with a clearer, a most powerful voice. (Against Politics, 129)

But Jasay’s condemnation of Hayek does not follow. I have suggested on this blog that the 3 branches of government exhibit different “privatizability.”

The judicial branch can and ought to be fully private;

the legislature is part-time, insofar as an occasional positive law or written custom can be a useful addition to natural law;

and the executive must remain fully public and probably tax-financed.

We can easily correctly judge property, freedom of contract, and natural law to be pre-state and rationally deducible a la Rothbard, while admitting that the public police is still “indispensable” for enforcing these.

Nor need we further entertain the grotesque idea that “property is what you can defend,” which would again imply that the state, in enforcing the law, determines the law’s content.

I therefore agree in part with the first paragraph of the quote while rejecting the second paragraph.


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