Herbert Spencer was born after Mill, died thirty years after Mill died, and published important works in political theory — especially The Man versus the State (1884) and The Principles of Ethics (1879-97) decades after Mill’s death. Mostly for these reasons, my discussion of Spencer follows that of Mill, even though I will focus on Spencer’s early (1851) libertarian work, Social Statics. In many ways, Social Statics is a deeply problematic work. Spencer’s endorsement of the Greatest Happiness Principle is tied to his saying that this principle is the Divine Idea and, in the introduction to this book, Spencer seems to argue that just action, and only just, accords with the Greatest Happiness Principle because God has established justice as the unexceptional path to happiness (1970: 61, 48).^ More disturbing yet is Spencer’s systematic conflation of causal laws of nature — which cannot be violated and must be relied upon if happiness is to be attained — and normative principles — which can be violated but must be abided by if happiness is to be attained (1970: 37-41). Nevertheless, Social Statics is of interest both for Spencer’s attempt to base strict regard for his first principle of justice — e.g., the law of equal freedom — on the Greatest Happiness Principle and for the set of moral rights that Spencer derives from that law.
Like Mill’s Utilitarianism and On Liberty, Spencer’s Social Statics pays tribute to the Greatest Happiness Principle as the ultimate moral standard. Yet, even more so than Mill, Spencer seeks to erect an intermediary principle which, although founded on general utility, provides individuals with principled protection against direct demands upon them in the name of general utility. Spencer draws a sharp line between the acceptance of the greatest happiness as our ultimate moral touchstone and as the end that is to be promoted in all particular actions.
It is one thing … to hold that greatest happiness is the creative purpose, and quite a different thing to hold that the greatest happiness should be the immediate aim of man. It has been the fatal error of the expediency philosophers [in particular, Bentham] to confound these positions. (1970:61)
The problems with the direct pursuit of the greatest happiness are essentially epistemic. For one thing, there are many competing conceptions of happiness. “[N]o two men have like conceptions; and further, …in each man the conception is not the same at any two periods of life” (1970: 6). We have no basis for choosing among these conceptions. Moreover, we cannot weigh the attainment of different conceptions against one another. “[I]f we compromise the matter and say [the greatest happiness] should combine both, how much of each shall go to its composition?” (1970: 8). For another thing, even if we had an understanding of the greatest happiness that would allow us to say that one complex social outcome would possess greater happiness than another, we would not know what specific actions would produce that better outcome.
Granting for the sake of argument that the desideratum, “greatest happiness,” is duly comprehended, its identity and nature agreed upon by all, … there yet remains the unwarranted assumption that it is possible for the self-guided human judgment to determine, with something like precision, by what methods it may be achieved. (1970: 9)
In short, “were the expediency theory otherwise satisfactory, it would still be useless, since it requires nothing less than omniscience to carry it into practice” (1970: 16).
However, Spencer believes that we can discover fundamental principles, compliance with which will lead us in the direction of the greatest happiness — without our having to decide whose conception of happiness is superior. Since each person’s chosen exercise of his faculties yields happiness by that individual’s own lights, the only measure we can have of increases of happiness within society is the percentage of people who are exercising their faculties in accordance with their own choices. The greatest happiness will exist when each member of society is exercising his faculties in accordance with his own choice. So, for Spencer, the greatest happiness requires the advancement of everyone’s happiness. The social condition that is crucial to this mutual advancement of happiness is that no one exercises his faculties in ways that block any other person’s chosen exercise of her faculties. Thus, the principle most conducive to the greatest happiness is the law of equal freedom, “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man” (1970: 95). This law is the fundamental principle of justice. Other principles are needed to supplement the law of equal freedom if human beings are to fully attain their potential happiness.
For instance, the principle of negative benevolence is needed to further limit the exercise of one’s faculties to actions that do not cause distress in others. It is a mark of the early stage of human evolution that, even when people comply with the law of equal freedom, their actions often cause distress to others. However, individuals may not be forced not to engage in distressing actions as long as their conduct is respectful of others’ equal freedom. In addition, the priority of the law of equal freedom requires us to allow each individual to exercise her freedom in selfharming ways (1970: 69-79).
In Social Statics, Spencer proceeds to derive certain more specific rights from the law of equal freedom. I can only discuss a few of the most important or striking such derivations. According to Spencer, the law of equal freedom implies the rights of life and personal liberty. For, if one party kills or enslaves another, the former brings it about that she enjoys a more extensive freedom than the other. Spencer also holds that the law of equal freedom will be violated if one individual possesses discretionary control over the surface of the earth or if a limited number of individuals each possess discretionary control over portions of the total surface of the earth. For, under those circumstances, “the rest of [the earth’s] inhabitants can then exercise their faculties — can then exist even — only by consent of the landowners” (1970: 104), whereas the landowners can exercise their faculties without the consent of the landless. Spencer rejects the proposal that equal freedom be preserved by allotting an equal share of the land to each person. For, a scheme of equal division will encounter «the difficulty of fixing the values of respective tracts of land” (1970: 110) and the difficulty of re-fixing values and allotments whenever new individuals come of age (and others die). Instead, Spencer proposes societal ownership of the earth, that is, of all raw materials — although this is to be country-by-country ownership, not global ownership. Such a scheme will realize equal freedom because, «Under it, all men would be equally landlords; all men would be alike free to become tenants” (1970: 110). In Social Statics, Spencer advocates what is now known as «left-libertarianism.”
According to Spencer, societal ownership of the land also provides the starting point for just individual property rights. For these rights arise from the contracts between society and its tenants. A tenant pays rent to society, and society «to fulfill its part of the agreement, must acknowledge his title to the surplus which remains after the rent has been paid” (1970: 116).— Thus, contrary to Locke, Spencer makes the acquisition of all property rights dependent on the consent of society. In contrast, the rights of free speech and the equal rights of women are simple implications of the law of equal freedom. The right to free speech exists, because no individual’s speech precludes any other individual’s speech (1970: 132). Moreover, “Equity knows no difference of sex. In its vocabulary the word man must be understood in the generic and not in the specific sense. The law of equal freedom manifestly applies to the whole race — female as well as male” (1970: 138). Furthermore, Spencer asserts the equal rights of children and, in one of the longest chapters of the book, he contrasts the benefits of non-coercive education with the evils of coercive education (1970: 153-71).
Along with the right of society to the earth, the most striking right asserted by Spencer is the right of each individual to ignore the state. Each individual is free to drop connection with the state — to relinquish its protection and to refuse to pay toward its support… in so behaving he in no way trenches upon the liberty of others, for his position is a passive one, and while passive he cannot become an aggressor … He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach, and he has therefore a right so to withdraw. (1970: 185)
Spencer argues that one must endorse this right if one takes at all seriously the common maxim that political authority rests on the consent of the governed. For this must mean the voluntary consent of each person who is to be governed; person C cannot be bound by the consent of A and B. Every act of toleration, for example, of religious dissent, is simply the recognition that in some respect each individual may ignore the state. The right to ignore the state is simply the sum and generalization of such toleration (1970: 191-3). To the dismay of left-libertarians, Spencer removed the chapter on rights to earth from later editions of Social Statics; to the dismay of anarchist libertarians, he also removed the chapter on the right to ignore the state.