Spencer's Theory of Rights

SPENCER’S THEORY OF RIGHTS

DR. NALINI PANT
Lecturer in Political Science, Banaras Hindu University

The notion of individual self-interest began to figure in political theory in the sixteenth century and reached its high watermark in the first half of the nineteenth century. Spencer, though he came on the scene a little later, belonged to the tradition of Bentham and Mill. His own contribution to the creed was to give a biological flavour to the theory of laissez-faire, and he discussed politics in terms of survival and of science.

Like a thorough-going individualist Spencer’s whole political philosophy was based upon individual rights. The ultimate goal of human endeavours, according to him, is to achieve self-satisfaction. He, however, differs from the utilitarians in making the principle of happiness “divinely ordained.” The utilitarians thought that it could be created by the State, as it is achieved by agreeable sensations from without. To Spencer happiness is something inward. It signifies a gratified state of all the faculties.”¹ The due exercise of human faculties is a divine will, and it is man’s duty to fulfill divine will. The freedom to exercise his faculties is, therefore, the innate right of the individual. Nobody is allowed to infringe its sanctity–not even the State.

Had Spencer elaborated only his individualistic system and corollary–the system of natural rights–he would have been the greatest exponent of individual freedom and would have been more consistent. With his cult of the abstract individual and of innate natural rights he combines his belief in the organic view of society. The result is that throughout his writings he remains the exponent of two contradictory systems of political thought. On the one hand, he is an anarchic individualist whose sole concern is to safeguard natural rights of the individual, and, on the other hand, he becomes an evolutionary sociologist to whom community appears as an organism.

If the ‘divine idea’ or ‘the greatest happiness’ can be achieved by the due exercise of human faculties, freedom of action is the primary and supreme natural right of the individual. But man who lives in society, has to respect the right of others also. Therefore, the second deduction from the divine idea of happiness is: “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.” ² Freedom, thus conceived, demands the least possible interference from the State. It is the ‘moral sense,’ and not state-coercion, which infuses in man a conviction of the equality of human rights.

All other rights flow from the primary right of equal freedom. If the law of equal freedom is divinely ordained, it is manifest that these rights can exist independently of either social or legal recognition. They pertain to the laws of life, sociological and biological. Society does not create them, but only defends and defines them. Natural rights do not derive their warrant from law; instead law derives its warrant from them.

In ‘Social Statics’ and ‘justice’ Spencer enumerates various natural rights. These are: the right to life and liberty, the right to the use of natural media, the right to free motion and locomotion, the right of free exchange and free contract, the right of free industry, the right of free belief and worship and the right of free speech and publication. In the domain of relative ethics, these rights are limited by the exigencies of war and internal dissensions; for the preservation of society sometimes requires the subordination of these rights.

The most important right that Spencer discusses is the right to the use of natural media–such as air, water, light and earth. Such natural media, however, cannot be taken away from the common possession of the whole community. Spencer, the Individualist–paradoxical though it may appear–therefore, suggests the common ownership of land. His reasoning is like this: if one portion of the earth’s surface becomes the possession of one and another portion of some one else, and if in this way the whole of earth’s surface is apportioned, what would become of those who are left out? Therefore, the lawful owner of earth’s surface is the society. But then this right is important for self-realization also. How to reconcile these two contradictory points? Spencer finds a way out. He cites Locke with approval that the labour of one’s body turns a thing into private possession. But if the land is owned by the society its consent is also necessary. Spencer suggests that under the supreme ownership of the society, A, B, C, and the rest might compete for a vacant farm; and one of them might take a farm for a fixed number of years. All would be equally free to bid. In ‘Justice’ Spencer modifies a little his revolutionary ideas about the social ownership of landed property and the supposed individual tenancy under it. He still believes in it; but now he realises the utter impossibility of turning this idea into practice, and thus finds a relative justification in the existing system of rights of landed property.

Along with the right of corporeal property, Spencer also discusses the right of incorporeal property–such as the right of property in ideas, and the right of property in character. These are earned like other property by labour.

The right of property also includes in it the right of gift and bequest, but not the right of entail. The case of property in the form of capital is different. It can be bequeathed according to the testator’s will.

Spencer’s plea for the equality of rights among individual includes in it the rights of women as well. What is, however, revolutionary is his defence of equal rights of children. He deprecates paternal coercion, and has an aversion for the family as an institution for the organization of discipline. In Social Statics he says that the rights of children are co-extensive with those of adults, for they also have faculties to develop. Practically also, its denial leads to various difficulties. For example, it is difficult to ascertain the time when a child acquires manhood. Moreover, if a child has no right, then infanticide is certainly not a crime. And if they have the right to live, why not they have other rights as well? What is the criterion of the line of demarcation Taking in view all these factors “we must admit that the rights of the youth and adult are co-extensive.” ³ Though against coercion, Spencer still sees the need of education. But this need is only temporary, and like other institutions, resulting from man not having achieved the social state so far, it must in the end vanish.

In ‘Justice’ Spencer modifies his revolutionary assertion of the rights of children. Now he no more speaks of the ‘rights of children,’ but uses a new phrase instead–‘the rightful claims of the children,’ such ‘claims’ are for food, clothing, shelter, etc.

In The Man Versus the State Spencer attempts to demonstrate the existence of natural rights by various methods. The customs of savage people like Korvana, Hottentots, the Dyaks and others illustrate their existence. For example, they all had a sense of private property over such articles as tools, etc. The reform of law from time in conformity to some higher authority also justifies the existence of natural rights–this authority is often nothing else than the authority of natural rights. Again, the uniformity of rights leads to the same conclusion. The uniformity of claims means that there are certain innate rights which no civilized State likes to infringe. With the rise of regime of contract the tendency of Government to meddle with individual claims has declined and natural rights are restored. This, however, is not borne out by present day facts. With the industrial and cultural growth, all the spheres of political and social life are now being fairly co-ordinated by the all pervading State activities.

Spencer’s assumption that as civilization advances there would be more and more conformity to natural rights gives an idea of the existence of natural rights at the far end of the long process of culture. As laid down by Aristotle, it seems quite correct to interpret the more developed by the less developed. This view also fits with Spencer’s theory of evolution. What, however, is incongruous is that at one place he justifies the existence of natural rights by the customs of savage tribes and at the other place projects them in a ‘visioned future.’

The greatest drawof Spencer’s theory of natural rights lies in the way in which they are turned into ethical rights. The renunciation of a part of Individual freedom which is necessitated by the presence of society, turns natural rights into ethical rights. Thus, “while positive element in the right to carry on life-sustaining activities originates from the laws of life, that negative element which gives ethical character to it, originates from the conditions produced bysocial aggregation.”⁴ In fact, it is the presence of society which gives positive element to the rights, and not the abstract biological laws of life. Society makes men moral as Rousseau and idealists believed. Moreover, the above assertion gives the impression that Spencer has divided natural rights into two categories–(1) natural rights that are independent of social life and are positive; (2) natural rights that are social and therefore ethical, but negative. Now, which of these two are more important? Spencer would prefer those which are Independent of social life, as they are rights to carry on life-sustaining activities. But then it would mean relegating social life to ground, and this would be at variance with his notion of ‘social equilibrium.’ This difficulty is also referable to the contradiction which runs through the whole of Spencerian philosophy, viz., the opposition between his individualistic theory based on natural rights and the conception of society as an organism.

Again, if the presence of society turns natural rights into ethical rights, it means that now there are no natural rights. Such a conception would horrify Spencer, for it is only on natural rights that he weaves his whole theory of individualism.

Another confusion arises due to Spencer’s assertion that natural rights are pre-social rights and are, therefore, devoid of social recognition. But if natural rights inhere in the customs of primitive people, it means that they are products of society. Again, if such a primary right as the right of property needs consent of the society, how can it be called a pre-social right?

It was perhaps in order to remove this discrepancy that Spencer used the device of demarcating the ‘State’ from the ‘society’. Natural rights are, perhaps, not precedent to the life of society, but they precede the State. What, however, makes his exposition vague is his confusion in the use of the word ‘State’.

Spencer’s theory of natural rights necessarily presupposes a contract. His conception of social organic growth, however, would not permit the entrance of the idea of contract. Yet, this conception enters into both Social Statics and The Man Versus the State to limit the functions of the State.

Summing up, we may say that in spite of his theory of social organism, Spencer’s political teaching is exactly in line with Mill’s who was unaffected by the conception of social organism.

II

Since in Spencer’s political system, government cannot create any facilities for the exercise of faculties, it follows that political rights do not exist. Government is only a means for the protection of rights already existing, and it employs various methods for their maintenance. In modern times, with the growth of democracy people have come to possess a share in the political power by the use of franchise. Such a share in the political power by citizens, which is only a guarantee for the maintenance of natural rights, is mistakenly spoken of as ‘rights’. The so-called political rights, such as the right to vote, are thus not real rights.

Spencer, who is such a strong supporter of co-extensive rights of women and children, denies the equal use of political power by them. Yet, there is nothing surprising in it, as he discards the concept of the political rights altogether.

In his enthusiasm to safeguard the individual from the freedom-destroying hands of the State, Spencer not only reduces the functions of the State to the protection of individual rights but even goes further and confers upon the individual the revolutionary right ‘to ignore the State.’ He says: “If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the State–to relinquish its protection, and to refuse paying towards its support. It is self-evident that in so behaving he in no way trenches upon the liberty of others; for his position is a passive one, whilst passive he cannot become an aggressor.” ⁵

The ‘right to ignore the State’ is the most revolutionary right that has ever been propounded. Its exercise would lead mankind to perpetual anarchy–there is no doubt about it. Spencer himself sensed this danger. Perhaps this is the reason why, after propounding this doctrine in Social Statics, he remained silent about it in his succeeding works. Even in Social Statics he says at the end of the chapter, “Let not any be alarmed….at the promulgation of the foregoing doctrine….probably a long time will elapse before the right to ignore the State will be generally admitted, even in theory. It will be still longer before it receives legislative recognition. And even then there will be plenty of checks upon the premature exercise of it.”⁶

The ‘right to ignore the State’ thus becomes an ideal principle which can only be used when mankind will have reached the stage of Utopian anarchy. Even then, this right would be useless–as in such a regime there would be voluntary organizations and no State coercion.

There is one more discordant note. It is quite perplexing to note that after his emphatic assertion that the ‘law of equal freedom’ is the highest authority, and this right alone justifies the right of individual ‘to drop connection with the State,’ he still yearns for this right to get legislative sanction.

III

“Administrative nihilism” was the name given to Spencer’s political system by Huxley. This phrase is the correct expression of his political ideas. Throughout his life he remained an ‘administrative nihilist’ and it culminated in his famous chapter in Social Statics–‘The Right to Ignore the State.’ Spencer gave to the government and the legislator no work but the safeguarding of natural boundaries and the protection of individual rights. He would totally reject the view of Bosanquet who, following Rousseau, conferred upon the legislator the great task of interpreting at criticising the individual conduct.

Spencer’s individual is an abstract individual. Barker says that his men ‘are men of straight lines.’ His society becomes society of perfect and self-disciplined men, and they need
No government. This ideal, however, could only be achieved in a city of gods.

Spencer never contemplated the possibility of an extension of economic security of the regulation of education, sanitation, public health, etc., as a guarantee of individual’s day-to-day liberty. Green was far more consistent in his view. He took into account ordinary men of existing society–over-worked women and children, labourers on the verge of starvation, and “denizen of a London Yard with gin shops on the right hand and the left.” Spencer’s law ofequal freedom could be enjoyed when the State has removed all these obstacles from the path.

Due to his one-sided view of the individual, Spencer’s theory of rights also remained one-sided. He does notbelieve in political rights. He may be consistent in deprecating the Benthamite principle that all rights are the creation of government, but when he says that even after the State acts in the capacity of the protector of rights, still they (rights) remain outside the sphere ofthe State he begins to show signs of discrepancy. Green’s thesis is more logical. He admits that rights existed prior to the State, but when these are co-ordinated and adjusted by the State they proceed from the State, and the State has full control over them.

In spite of all these inconsistencies, Spencer’s political ideas are of great value. There is a persistent note in his writings throughout, that the State can function only through individuals, and that these individuals are no better than average men. Therefore, all mystic worship of the ‘power’ should be avoided. The watchwords of his philosophy are ‘individual initiative’ and ‘intelligent self-interest.’ His ideal is a community where there will be no need of the police to enforce the natural rights, and where virtue will be spontaneous and voluntary; where along “with a moral consciousness of the claims of self and others, there comes an intellectual perception of them.” ⁷

¹ Spencer, Herbert: Social Statics, 1868, p. 9.
² Spencer, Herbert: Social Statics, 1868, p. 121.
³ Spencer, Herbert: Social Statics, 1868, p. 195.
⁴ Spencer, Herbert: The Man Versus the State, 1914, p. 81.
⁵ Spencer, Herbert: Social Statics, 1868, p. 229.
⁶ Ibid. p. 240.
⁷ Spencer, Herbert: Justice: Being Part IV of the Principiles of Ethics, 1891, p.119.