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Is Herbert Spencer's Law of Equal Freedom a Utilitarian or a Rights-Based Theory of Justice? T. S. GRAY 1. INTRODUCTION THE RELATIONSHIP between utility and rights has long occupied writers on ethics and politics. These two principles appear to supply alternative and opposed foundations for political theory. Some utilitarians (such as Bentham) dismiss (natural) rights as nonsense. Some rights theorists (such as Kant and Nozick) dismiss utilitarian considerations as outside justice. But attempts have been made to bridge the gulf apparently separating utility from rights. Utilitarians such as J. S. Mill have tried to accommodate the notion of rights within the principle of utility. ~ And Rawls' A Theory of Justice may be interpreted as an attempt by a rights-theorist to accommodate the principle of utility. Herbert Spencer, who was faced in 185o like Rawls in 197o with a climate of intellectual opinion predominantly utilitarian in character, produced a political theory I am endebted to Peter Jones and Hillel Steiner for their helpful comments on earlier versions of this paper. I am grateful to one of the anonymous referees of thisjournal for pointing out to me that "Spencer's basing the law of equal freedom on the Moral Sense suits the respect for the intuitionist Scottish philosophy in Spencer's friendship circle," and for drawing my attention to Mark Francis's unpublished dissertation, The Origim of the SpencerianPhilosophy and the New Reformation (Cambridge, i973) where these connections are explored. The following abbreviations of works by Herbert Spencer are used in this essay: SS SocialStatics(London: John Chapman, 1851). PE ThePrinciplesofEthics, ~vols. (London: Williamsand Northgate, 1879-93). A Autobiography, 2 vols. (London: Williams and Northgate, 19o4). Essays Essays:Scientific,Politicaland Speculative, 3 vols. (London: Williams and Northgate, 19ol). ' John Gray has recently described Mill's theory thus: "We may characterise his indirect utilitarian derivation of basic rights as a rights-based political theory grounded in a goal-based moral theory." "Indirect Utility and Fundamental Human Rights," in E. F. Paul, F. D. Miller, and J. Paul, eds., Human Rights (Oxford: Blackwell, 1984), 89. [259] 260 JOURNAL OF THE HISTORY OF PHILOSOPHY 26:2 APRIL 1988 which has been interpreted by some critics such as John Gray as a utilitarian creed of an indirect kind, in which protection of natural rights isjustified as the surest means to the greatest happiness. Other critics such as Hillel Steiner, however, have interpreted Spencer's theory as ultimately rights-based, though one that is often, if vainly, defended by him also on utilitarian grounds. It will be argued in this paper that Spencer's theory is founded upon a doctrine of Moral Sense from which intuitions concerning human rights are applied by reason to yield policy prescriptions striking a balance between utility and rights. This interpretation differs from that of Gray in that it views rights as prior to utility, and it differs from Steiner's interpretation in that it supplies a foundation for rights--a foundation which includes some utilitarian elements. In what follows I will critically examine the above two interpretations of Spencer's doctrine (as a utility-based theory and as a rights-based theory respectively ) before elaborating my own argument that it is a Moral Sense theory. 2. TWO ALTERNATIVE BASES OF SPENCER'S THEORY A. A Utility-Based Theory There is much argumentation in Spencer's Social Statics (185o) and Principles of Ethics (1879-1893) which suggests utilitarianism. The full title of the earlier book is Social Statics: or The Conditions Essential To Human Happiness Specified and the First of Them Developed. This "first condition" of happiness is the law of equal freedom (L.E.F.), which for Spencer meansjustice.~ While rejecting the Benthamite idea that the "greatest happiness should be the immediate aim of man" (SS 66), Spencer affirms that "the ultimate purpose of creation" is "the production of the greatest amount of happiness" (SS 41o) and that "... though not the immediate end, the greatest sum of happiness is the remote end" (PE 2:46). Spencer claims that "greatest happiness is the creative purpose" and that "Greatest Happiness and Morality are the face and obverse of the same fact" (SS 66). In his Principles of Ethics, forty years...


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