[15.] Fire Surveys; or, a Summary of the Principles to be observed in Estimating the Risk of Buildings.
[16.] See The Times, 6 October 1874, where other instances are given.
[17.] Sir Thomas Farrer, “The State in its Relation to Trade, p. 147.
[18.] ibid., p. 149.
[19.] Hansard, vol. clvi, p. 718, and vol. clviii, p. 4464.
[20.] Letter of an Edinburgh M.D. in The Times of 17 January 1876, verifying other testimonies; one of which I had previously cited concerning Windsor, where, as in Edinburgh, there was absolutely no typhoid in the undrained parts, while it was very fatal in the drained parts— Study of Sociology, chap. i, notes.
[21.] I say this partly from personal knowledge; having now before me memoranda made 25
years ago concerning such results produced under my own observation. Verifying facts have recently been given by Sir Richard Cross in the Nineteenth Century for January 1884, p. 155.
[22.] Sir G. Nicholl’s History of the English Poor Law, ii, p. 252.
[23.] See The Times, 31 March 1873.
[24.] In these paragraphs are contained just a few additional examples. Numbers which I have before given in books and essays, will be found in Social Statics (1851); “Over-Legislation” (1853); “Representative Government” (1857); “Specialized Administration” (1871); Study of Sociology (1873), and Postscript to ditto (1880); besides cases in smaller essays.
[25.] On the Value of Political Economy to Mankind. By A. N. Cumming, pp. 47, 48.
[26.] The saying of Emerson that most people can understand a principle only when its light falls on a fact, induces me here to cite a fact which may carry home the above principle to those on whom, in its abstract form, it will produce no effect. It rarely happens that the amount of evil caused by fostering the vicious and good-for-nothing can be estimated. But in America, at a meeting of the States Charities Aid Association, held on 18 December 1874, a startling instance was given in detail by Dr. Harris. It was furnished by a county on the Upper Hudson, remarkable for the ratio of crime and poverty to population. Generations ago there had existed a certain
“gutter-child,” as she would be here called, known as “Margaret,” who proved to be the prolific mother of a prolific race. Besides great numbers of idiots, imbeciles, drunkards, lunatics, paupers, http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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and prostitutes, “the county records show two hundred of her descendants who have been criminals.” Was it kindness or cruelty which, generation after generation, enabled these to multiply and become an increasing curse to the society around them? [For particulars see The Jukes: a Study in Crime, Pauperism, Disease and Heredity. By R. L. Dugdale. New York: Putnams.]
[27.] Mr. J. Chamberlain in Fortnightly Review, December 1883, p. 772.
THE GREAT POLITICAL SUPERSTITION
The great political superstition of the past was the divine right of kings. The great political superstition of the present is the divine right of parliaments. The oil of anointing seems unawares to have dripped from the head of the one on to the heads of the many, and given sacredness to them also and to their decrees.
However irrational we may think the earlier of these beliefs, we must admit that it was more consistent than is the latter. Whether we go back to times when the king was a god, or to times when he was a descendant of a god, or to times when he was god-appointed, we see good reason for passive obedience to his will. When, as under Louis XIV, theologians like Bossuet taught that kings “are gods, and share in a manner the Divine independence,” or when it was thought, as by our own Tory party in old days, that “the monarch was the delegate of heaven”; it is clear that, given the premise, the inevitable conclusion was that no bounds could be set to governmental commands. But for the modern belief such a warrant does not exist. Making no pretention to divine descent or divine appointment, a legislative body can show no supernatural justification for its claim to unlimited authority; and no natural justification has ever been attempted. Hence, belief in its unlimited authority is without that consistency which of old characterized belief in a king’s unlimited authority.
It is curious how commonly men continue to hold in fact, doctrines which they have rejected in name—retaining the substance after they have abandoned the form. In Theology an illustration is supplied by Carlyle, who, in his student days, giving up, as he thought, the creed of his fathers, rejected its shell only, keeping the contents; and was proved by his conceptions of the world, and man, and conduct, to be still among the sternest of Scotch Calvinists. Similarly, Science furnishes an instance in one who united naturalism in Geology with supernaturalism in Biology—Sir Charles Lyell. While, as the leading expositor of the uniformitarian theory in Geology, he ignored only the Mosaic cosmogony, he long defended that belief in special creations of organic types, for which no other source than the Mosaic cosmogony could be assigned; and only in the latter part of his life surrendered to the arguments of Mr. Darwin. In Politics, as above implied, we have an analogous case. The tacitly-asserted doctrine, common to Tories, Whigs, and Radicals, that governmental authority is unlimited, dates back to times when the law-giver was supposed to have a warrant from God; and it survives still, though the belief that the law-giver has God’s warrant has died out. “Oh, an Act of Parliament can do anything,” is the reply made to a citizen who questions the legitimacy of some arbitrary State-interference; and the citizen stands paralysed. It does not occur to him to ask the how, and the when, and the whence, of this asserted omnipotence bounded only by physical impossibilities.
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Here we will take leave to question it. In default of the justification, once logically valid, that the ruler on Earth being a deputy of the ruler in Heaven, submission to him in all things is a duty, let us ask what reason there is for asserting the duty of submission in all things to a ruling power, constitutional or republican, which has no Heavenly-derived supremacy. Evidently this inquiry commits us to a criticism of past and present theories concerning political authority. To revive questions supposed to be long since settled, may be thought to need some apology; but there is a sufficient apology in the implication above made clear, that the theory commonly accepted is ill-based or unbased.
The notion of sovereignty is that which first presents itself; and a critical examination of this notion, as entertained by those who do not assume the supernatural origin of sovereignty, carries us back to the arguments of Hobbes.
Let us grant Hobbes’s postulate that, “during the time men live without a common power to keep them all in awe, they are in that condition which is called war … of every man against every 1
man” ; though this is not true, since there are some small uncivilized societies in which, without any “common power to keep them all in awe,” men maintain peace and harmony better than it is maintained in societies where such a power exists. Let us suppose him to be right, too, in assuming that the rise of a ruling man over associated men, results from their desires to preserve order among themselves; though, in fact, it habitually arises from the need for subordination to a leader in war, defensive or offensive, and has originally no necessary, and often no actual, relation to the preservation of order among the combined individuals. Once more, let us admit the indefensible assumption that to escape the evils of chronic conflicts, which must otherwise continue among them, the members of a community enter into a “pact or covenant,” by which they all bind themselves to surrender their primitive freedom of action, and subordinate 2
themselves to the will of an autocrat agreed upon: accepting, also, the implication that their descendants for ever are bound by the covenant which remote ancestors made for them. Let us, I say, not object to these data, but pass to the conclusions Hobbes draws. He says:
For where no covenant hath preceded, there hath no right been transferred, and
every man has a right to everything; and consequently, no action can be unjust. But when a covenant is made, then to break it is unjust: and the definition of INJUSTICE, is no other than the not performance of covenant. … Therefore before the names of
just and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, by the terror of some punishment, 3
greater than the benefit they expect by the breach of their covenant.
Were people’s characters in Hobbes’s day really so bad as to warrant his assumption that none would perform their covenants in the absence of a coercive power and threatened penalties? In our day “the names of just and unjust can have place” quite apart from recognition of any coercive power. Among my friends I could name several whom I would implicitly trust to perform their covenants without any “terror of such punishment”; and over whom the requirements of justice would be as imperative in the absence of a coercive power as in its presence. Merely noting, however, that this unwarranted assumption vitiates Hobbe’s argument for State-authority, and accepting both his premises and conclusion, we have to observe two significant implications.
One is that State-authority as thus derived, is a means to an end, and has no validity save as subserving that end: if the end is not subserved, the authority, by the hypothesis, does not exist.
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The other is that the end for which the authority exists, as thus specified, is the enforcement of justice—the maintenance of equitable relations. The reasoning yields no warrant for other coercion over citizens than that which is required for preventing direct aggressions, and those indirect aggressions constituted by breaches of contract; to which, if we add protection against external enemies, the entire function implied by Hobbes’s derivation of sovereign authority is comprehended.
Hobbes argued in the interests of absolute monarchy. His modern admirer, Austin, had for his aim to drive the authority of law from the unlimited sovereignty of one man, or a number of men, small or large compared with the whole community. Austin was originally in the army; and it has been truly remarked that “the permanent traces left” may be seen in his Province of Jurisprudence. When, undeterred by the exasperating pedantries—the endless distinctions and definitions and repetitions—which served but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to military authority; taking for granted that the one, as the other, is above question in respect of both origin and range. To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it—a monarch, an aristocracy, or that larger body of men who have votes in a democracy; for such a body also, he styles the sovereign, in contast with the remaining portion of the community which, from incapacity or other cause, remains subject. And having affirmed, or rather, taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course, has no difficulty in deducing the legal validity of its edicts, which he calls positive law. But the problem is simply moved a step further back and there left unsolved. The true question is—Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number, over the rest? A critic might fitly say—“We will dispense with your process of deriving positive law from unlimited sovereignty: the sequence is obvious enough. But first prove your unlimited sovereignty.”
To this demand there is no response. Analyse his assumption, and the doctrine of Austin proves to have no better basis than that of Hobbes. In the absence of admitted divine descent or appointment, neither single-headed ruler nor many-headed ruler can produce such credentials as the claim to unlimited sovereignty implies.
“But surely,” will come in deafening chorus the reply, “there is the unquestionable right of the majority, which gives unquestionable right to the parliament it elects.”
Yes, now we are coming down to the root of the matter. The divine right of parliaments means the divine right of majorities. The fundamental assumption made by legislators and people alike, is that a majority has powers which have no bounds. This is the current theory which all accept without proof as a self-evident truth. Nevertheless, criticism will, I think, show that this current theory requires a radical modification.
In an essay on “Railway Morals and Railway Policy,” published in the Edinburgh Review for October, 1854, I had occasion to deal with the question of a majority’s powers as exemplified in the conduct of public companies; and I cannot better prepare the way for conclusions presently to be drawn, than by quoting a passage from it:
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is held that if difference of opinion arises among them, justice requires that the will of the greater number shall be executed rather than that of the smaller number; and this rule is supposed to be uniformly applicable, be the question at issue what it may. So confirmed is this conviction, and so little have the ethics of the matter been considered, that to most this mere suggestion of a doubt will cause some
astonishment. Yet it needs but a brief analysis to show that the opinion is little better than a political superstition. Instances may readily be selected which prove, by reductio ad absurdum, that the right of a majority is a purely conditional right, valid only within specific limits. Let us take a few. Suppose that at the general meeting of some philanthropic association, it was resolved that in addition to relieving distress the association should employ home-missionaries to preach down popery. Might the subscriptions of Catholics, who had joined the body with charitable views, be
rightfully used for this end? Suppose that of the members of a book-club, the greater number, thinking that under existing circumstances rifle-practice was more
important than reading, should decide to change the purpose of their union, and to apply the funds in hand for the purchase of powder, ball, and targets. Would the rest be bound by this decision? Suppose that under the excitement of news from
Australia, the majority of a Freehold Land Society should determine, not simply to start in a body for the gold-diggings, but to use their accumulated capital to provide outfits. Would this appropriation of property be just to the minority? and must these join the expedition? Scarcely anyone would venture an affirmative answer even to the first of these questions; much less to the others. And why? Because everyone must perceive that by uniting himself with others, no man can equitably be betrayed into acts utterly foreign to the purpose for which he joined them. Each of these supposed minorities would properly reply to those seeking to coerce them: “We
combined with you for a defined object; we gave money and time for the furtherance of that object; on all questions thence arising we tacitly agreed to conform to the will of the greater number; but we did not agree to conform on any other questions. If you induce us to join you by professing a certain end, and then undertake some
other end of which we were not apprised, you obtain our support under false
pretences; you exceed the expressed or understood compact to which we committed ourselves; and we are no longer bound by your decisions.” Clearly this is the only rational interpretation of the matter. The general principle underlying the right government of every incorporated body, is, that its members contract with one
another severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated; but in no others. To this extent only can the contract hold. For as it is implied in the very nature of a contract, that those entering into it must know what they contract to do; and as those who unite with others for a specified object, cannot contemplate all the
unspecified objects which it is hypothetically possible for the union to undertake; it follows that the contract entered into cannot extend to such unspecified objects. And if there exists no expressed or understood contract between the union and its
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into undertaking them, is nothing less than gross tyranny.
Naturally, if such a confusion of ideas exists in respect of the powers of a majority where the deed of incorporation tacitly limits those powers, still more must there exist such a confusion where there has been no deed of incorporation. Nevertheless the same principle holds. I again emphasize the proposition that the members of an incorporated body are bound “severally to submit to the will of the majority in all matters concerning the fulfilment of the objects for which they are incorporated; but in no others. ” And I contend that this holds of an incorporated nation as much as of an incorporated company.
“Yes, but,” comes the obvious rejoinder, “as there is no deed by which the members of a nation are incorporated—as there neither is, nor ever was, a specification of purposes for which the union was formed, there exist no limits; and, consequently, the power of the majority is unlimited.”
Evidently it must be admitted that the hypothesis of a social contract, either under the shape assumed by Hobbes or under the shape assumed by Rousseau, is baseless. Nay more, it must be admitted that even had such a contract once been formed, it could not be binding on the posterity of those who formed it. Moreover, if any say that in the absence of those limitations to its powers which a deed of incorporation might imply, there is nothing to prevent a majority from imposing its will on a minority by force, assent must be given—an assent, however, joined with the comment that if the superior force of the majority is its justification, then the superior force of a despot backed by an adequate army, is also justified; the problem lapses. What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physical coercion. Even Austin, anxious as he is to establish the unquestionable authority of positive law, and assuming, as he does, an absolute sovereignty of some kind, monarchic, aristocratic, constitutional, or popular, as the source of its unquestionable authority, is obliged, in the last resort, to admit a moral limit to its action over the community. While insisting, in pursuance of his rigid theory of sovereignty, that a sovereign body originating from the people “is legally free to abridge their political liberty, at its own pleasure or discretion,” he allows that “a government may be hindered by positive morality from abridging the political liberty which it 4
leaves or grants to its subjects.” Hence, we have to find, not a physical justification, but a moral justification, for the supposed absolute power of the majority.
This will at once draw forth the rejoinder—“Of course, in the absence of any agreement, with its implied limitations, the rule of the majority is unlimited; because it is more just that the majority should have its way than that the minority should have its way.” A very reasonable rejoinder this seems until there comes the re-rejoinder. We may oppose to it the equally tenable proposition that, in the absence of an agreement, the supremacy of a majority over a minority does not exist at all. It is cooperation of some kind, from which there arises these powers and obligations of majority and minority; and in the absence of any agreement to cooperate, such powers and obligations are also absent.
Here the argument apparently ends in a deadlock. Under the existing condition of things, no moral origin seems assignable, either for the sovereignty of the majority or for the limitation of its sovereignty. But further consideration reveals a solution of the difficulty. For if, dismissing all thought of any hypothetical agreement to cooperate heretofore made, we ask what would be the http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear answer; and with it a sufficiently clear justification for the rule of the majority inside a certain sphere but not outside that sphere. Let us first observe a few of the limitations which at once become apparent.
Were all Englishmen now asked if they would agree to cooperate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very emphatic “No” from a large part of them. If, in pursuance of a proposal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner if (to take an actual question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, certainly half, and probably more than half, would be unwilling. Similarly with respect to many other actions which most men now-a-days regard as of purely private concern. Whatever desire there might be to cooperate for carrying on, or regulating, such actions, would be far from a unanimous desire. Manifestly, then, had social cooperation to be commenced by ourselves, and had its purposes to be specified before consent to cooperate could be obtained, there would be large parts of human conduct in respect of which cooperation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightly exercised.
Turn now to the converse question—For what ends would all men agree to cooperate? None will deny that for resisting invasion the agreement would be practically unanimous. Excepting only the Quakers, who, having done highly useful work in their time, are now dying out, all would unite for defensive war (not, however, for offensive war); and they would, by so doing, tacitly bind themselves to conform to the will of the majority in respect of measures directed to that end.
There would be practical unanimity, also, in the agreement to cooperate for defence against internal enemies as against external enemies. Omitting criminals, all must wish to have person and property adequately protected. Each citizen desires to preserve his life, to preserve things which conduce to maintenance and enjoyment of his life, and to preserve intact his liberties both of using these things and getting further such. It is obvious to him that he cannot do all this if he acts alone. Against foreign invaders he is powerless unless he combines with his fellows; and the business of protecting himself against domestic invaders, if he did not similarly combine, would be alike onerous, dangerous, and inefficient. In one other cooperation all are interested—use of the territory they inhabit. Did the primitive communal ownership survive, there would survive the primitive communal control of the uses to be made of land by individuals or by groups of them; and decisions of the majority would rightly prevail repecting the terms on which portions of it might be employed for raising food, making means of communication, and for other purposes.
Even at present, though the matter has been complicated by the growth of private
landownership, yet, since the State is still supreme owner (every landlord being in law a tenant of the Crown) able to resume possession, or authorize compulsory purchase, at a fair price; the implication is that the will of the majority is valid respecting the modes in which, and conditions under which, parts of the surface or subsurface, may be utilized: involving certain agreements made on behalf of the public with private persons and companies.
Details are not needful here; nor is it needful to discuss that border region lying between these two classes of cases, and to say how much is included in the last and how much is excluded with the first. For present purposes, it is sufficient to recognize the undeniable truth that there are http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/ManVsState/0020_Bk.html
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numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would almost unanimously agree to be thus bound. Here, then, we find a definite warrant for enforcing the will of the majority within certain limits, and a definite warrant for denying the authority of its will beyond those limits.
But evidently, when analysed, the question resolves itself into the further question—What are the relative claims of the aggregate and of its units? Are the rights of the community universally valid against the individual? or has the individual some rights which are valid against the community?
The judgement given on this point underlies the entire fabric of political convictions formed, and more especially those convictions which concern the proper sphere of government. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable.
Says Professor Jevons, in his work, The State in Relation to Labour, —“The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights.” Of like character is the belief expressed by Mr. Matthew Arnold in his article on Copyright: “An author has no natural right to a property in his production. But then neither has he a natural right 5
to anything whatever which he may produce or acquire.” So, too, I recently read in a weekly journal of high repute, that “to explain once more that there is no such thing as “natural right”
would be a waste of philosophy.” And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any other.
One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now whatever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquiries, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, howe