The Sphere of Government; H. Hazlitt

But his earliest published work was a pamphlet, The Proper Sphere of Government, which he wrote at the age of22, and his first important book was Social Statics, published in 1851. These publications advocated Henry Hazlltt, noted econom.... author, editor, re viewer and columnl", he,. continue. a .erle. of nineteenth century theorl .. on the aphe,. of gov emment. The view. of John Stuart Mill we,. die cu.aed In the January 1980 ".ue of The Freeman. 486 what would today be called, and was in fact called at the time, Han ex treme form of laissez faire." The limitation of state power re mained one of Spencer's dominant interests till the end of his life. In a later edition of Social Statics he omitted a chapter entitled: ((The Right to Ignore the State," but es sentially his ideas on the subject of state power changed very little as he grew older. In 1884 he published a small volume entitled The Man Ver sus the State. In 1891 appeared Part IV of The Principles of Ethics: ((The Ethics of Social Life: Justice," and he declared this to represent his de finitive views on the subject. Let us summarize and analyze them.

After some prior discussion, Spencer arrives at what he calls Ha formula of justice: ... Every man is free to do that which he wills, proSPHERE OF GOVERNMENT: HERBERT SPENCER 487 vided he infringes not the equal freedom of any other man." This is almost exactly the maxim that he had laid down in his Social Statics forty years earlier, but I regret that it seems to me vague and unsatisfac tory. In The Principles of Ethics Spencer was aware of criticisms that must in the meantime have been made of it by others, for he im mediately proceeds to deal with one of them: ttA possible misapprehension must be guarded against. There are acts of aggression which the formula is presumably intended to exclude, which apparently it does not exclude. It maybe said that if A strikes B, then, so long as B is not debarred from striking A in return, no greater freedom is claimed by the one than by the other; or it may be said that if A has trespassed on B's property, the requirement of the formula has not been broken so long as B can trespass on A's property .

Such interpretations, however, mis take the essential meaning .. of the formula .... It does not countenance a superfluous interference with another's life, committed on the ground that an equal interference may balance it.... "1 Now this will hardly do. If a for mula does not in fact countenance actions that it does countenance on its face, then it has i not been satis factorily formulated. It is not a satisfactory rule or guide to policy, and it must be revised or rejected. It must clearly exclude aggression against or harm to others. But it must also carefully delimit the nature of the ((aggression" or ((harm." If A and B are applying for the same job or courting the same girl, and A is the successful competi tor, the prospects of B may be cor respondingly damaged. But as long as A ((played fair," and did not resort to violence or fraud, no one would consider that B had any just cause for complaint. There are many simi- ~ lar cases, but there are also border line cases. If A and B have neighbor ing properties and A puts up an ugly house that .B considers an eyesore threatening his property value, has B just cause for suit? If A puts up a fire hazard or a chemical factory that pollutes B's air or water, nearly everyone would consider B's case much stronger. It is problems like these that legislators and courts have to try to solve by passing scores of laws and. making thousands of decisions in individual cases.

More a Formula for Liberty than for Justice Spencer's formula strikes me more as an attempted definition of liberty than as a· maxim of justice. And ifit is so, then lmuch prefer the formula. of John Locke in 1690: ((Freedom of men under government is to have a standing rule to live by, 488 THE FREEMAN August common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not: and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man."2 Montesquieu stated essentially the same formula more briefly in 1748: ~~Liberty is the right to do what the laws allow. If a citizen had a right to do what they forbid it would no longer be liberty, for everyone else would have the same right."3 So all practicable liberty is liberty under law. But the shortcoming of both Locke's and Montesquieu's formulas is that they fail to state explicitly that the restraints that the laws impose must be just, definite' and minimal. But even a for mula that embodied these specifica tions would again fall short unless it spelled out what these just and min imal restraints would be. This is the dilemma that confronts all efforts to frame a concise definition of either justice or liberty.

The nearest to a good, short speci fication that I can at present re member is Thomas Jefferson's call for ua wise and frugal government, which shall restrain men from.injur ing one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned."4 But I have perhaps allowed myself to be carried too far astray on this point. Spencer's case for the mini mal state does not rest solely or even mainly on his own uformula for jus tice." Though he does not embrace the doctrine of Natural Law, he does believe that man has certain inher ent rights which we recognize by ~~a priori intuition" or ~~a priori cogni tion." He proceeds to write a series of ten chapters on The Right to Physical Integrity, The Rights to Free Motion and Locomotion, to the Uses of Natural Media, The Right of Property, of Incorporeal Property, of Gift and Bequest, of Free Exchange and Free Contract, to Free Industry, of Free Belief and Worship, and of Free Speech and Publication. No government, he argues, has any legitimate power to violate or abridge these rights.

A Modern Ring At the end of Part IV Spencer comes to seven chapters (23 to 29) on the nature, constitution, and duties of the state, and on the limits of state duties. When he discusses the constitution of the state, he might have been writing about one of the chief problems that disturb us today: Ulfit is true that a generation ago landowners and capitalists so ad justed public arrangements as to ease themselves and to press unduly 1980 SPHERE OF GOVERNMENT: HERBERT SPENCER 489 upon others, it is no less true that now artisans and laborers, through representatives who are obliged to do their bidding, are fast remolding our social system in ways which achieve their own gain through others' loss. Year after year more public agencies are established to give what seem gratis benefits, at the expense of those who pay taxes, local and general, and the mass of the people, receiving the benefits and relieved from the cost of main taining the public agencies, advo cate the multiplication of them.

UIt is not true, then, that the pos session of political power by all en sures justice to all. Contrariwise, experience makes obvious that which should have been obvious without experience, that with a uni versal distribution of votes the larger class will inevitably profit at the expense of the smaller class. Those higher earnings which more efficient actions bring to the superior, will not be all allowed to remain with them, but part will be drafted off in some indirect way to eke out the lower earnings of the less diligent or the less capable; and in so far as this is done, the law of equal freedom must be.broken."s He sums up: ttOne conclusion, however, is clear. State burdens, however pro portioned among citizens, should be borne by all. Every one who receives the benefits which government gives should pay some share of the costs of government and should di rectly and not indirectly pay it....

ttHad each citizen to pay in a visi ble and tangible form his proportion of taxes, the sum would be so large that all would insist on economy in the performance of necessary func tions and would resist the assump tion of unnecessary functions, whereas at present, offered as each citizen is certain benefits for which he is unconscious of paying, he is tempted to approve of extravagance; and is prompted to take the course, unknowingly if not knowingly dis honest, of obtaining benefits at other men's expense. ttDuring the days when extensions of the franchise were in agitation, a maxim perpetually repeated was tTaxation without representation is robbery.' Experience has since made it clear that, on the other hand, representation without taxation en tails robbery." (pp. 219-20) A Duty to Protect In his chapter on ttThe Duties of the State," Spencer concludes that there is in effect just one: to protect the citizenry against external and internal aggression-against for eign enemies and against its law breakers. And in the following chap ter on ttThe Limits of State Duties,"

he asserts: uThe question of limits becomes the question whether, beyond main490 THE FREEMAN August taining justice, the state can do any thing else without transgressing justice. On consideration we shall find that it cannot. . .. cCIf justice asserts the liberty of each limited only by the like liber ties of all, then the imposing of any further limit is unjust; no matter whether the power imposing it be one man or a million ormen .... We do not commonly see, in a tax a diminution of freedom;' and yet it clearly is one. The money taken rep resents so much labor gone through, and the product of that labor being taken away .... cThus much of your work shall be devoted, not to your own purposes, but to our purposes,' say the authorities to the citizens; and to whatever extent this is car ried, to that extent .. the citizens be come slaves of the government." (pp. 241-43) Examples Galore Though Spencer insisted con stantly on the priority and necessity of deductive reasoning,few political writers have been so industrious and specific in citing and piling up concrete examples of the bungling, contradictions, and abuses of power in carrying out the multitudinous functions that governments have taken on. Long before he got to The Principles of Ethics, he had detailed scores of these not only in Social Statics, but in such essays as uOver-Legislation," CCState Tamperings with Money and Banks," cCThe Collective Wisdom," and many others.

So in the Principles he continued to cite case after specific case. Of drafting laws, for example: cCThe judges themselves exclaim against the bungling legislation they have to interpret: .one judge saying. of a clause that he cdid not believe its meaning was com prehended .' either by the draftsman who drew it' or Ctheparliament that adopted it,' and another declaring that Cit was impossible for human skill to· find, words more calculated to puzzle everybody.' As a natural consequence we have every day ap peals and again appeals-decisions being reversed and re-reversed." (pp. 252-253) One would think Spencer was writing of conditions in America today, rather than those of England in 1890. Of the coinage: CCln this we have frequent changes where changes are undesirable. We have mixed sys tems: decimal, duodecimal, and nondescript. Until recently we had two scarcely. distinguishable pieces for threepence and fourpence" etc.

(p.253) Socialistic Legislation, In a discussion on usocialistic legislation," Spencer excoriates the then Prime Minister, Lord Salis bury, for sneering at basic principles and saying: uWe ought first, to dis1980 SPHERE OF GOVERNMENT: HERBERT SPENCER 491 cuss every subject on its own merits." This is the method, com ments Spencer, ~~which has been fol lowed by those legislators who, throughout past thousands of years, have increased human miseries in multitudinous ways and immeasur able degrees by mischievous laws. Regard for ~the merits of the case' guided Diocletian when he fixed the prices of articles and wages of work ers' and similarly guided rulers of all European nations who, century after century, in innumerable cases, have decided how much commodity shall be given for so much money, and in our own country guided those who, after the Black Death, framed the Statute of Labourers [to hold down wages], and presently caused the peasant revolt. The countless acts which, here and abroad, pre scribed qualities and modes of man ufacture, and appointed searchers to see that things were made as di rected, were similarly prompted by considerations of ~the merits of the case': evils existed which it was ob viously needful to prevent. . . .

~~Each one of those multitudinous regulations enforced by swarms of officials, which in France nearly strangled industry, and was a part cause of the French revolution, seemed to those who established it, a regulation which ~the merits of the case' called for; and no less did there seem to be called for the number less sumptuary laws which, generation after generation, kings and their ministers tried to enforce." (pp. 260-61) The Remarkable Contrast After citing many more such examples, Spencer sums up the con trast between the amazing ac complishments of free and spon taneous social cooperation and the immense harm wrought by mul titudinous government interven tions: ~~The average legislator, equally with the average citizen, has no faith whatever in the beneficent working of social forces, notwith standing the almost infinite illus trations of this beneficent working. He persists in thinking of a society as a manufacture and not as a growth: blind to the fact that the vast and complex organization by which its life is carried on, has re sulted from the spontaneous cooper ations of men pursuing their private ends. Though, when he asks how the surface of the earth has been cleared and made fertile, how towns have grown up, how manufactures of all kinds have arisen, how the arts have been developed, how knowledge has been accumulated, how literature has been produced, he is forced to recognize the fact that none of these are of governmental origin, but have many of them suffered from gov ernmental obstruction; yet, ignoring all this, he assumes that if a good is 492 THE FREEMAN to be achieved or an evil prevented, Parliament must be invoked. He has unlimited faith in the agency which has achieved multitudinous fail ures, and has no faith in the agency which has achieved multitudinous successes." (pp. 266-67) In expounding these views, Spencer, so far as the bulk of public opinion was concerned, was an iso lated figure. Similar ideas were being voiced by a handful of others, notably Auberon Herbert (1838 1906), but the vigorous opposition of Thomas H. Huxley (1825-1895) probably came much nearer to exA Sobering Thought pressing the political philosophy of the great mass of the British public in the 1880s and 1890s, to the extent that they bothered to formulate any philosophy. Huxley's views will be considered in a future issue of The Freeman. , -FOOTNOTESlPrinciples of Ethics, Vol. II (Indianapolis: Liberty Classics), Ch. 6, p. 62.

2Two Treatises of Civil Government (Every man's: E. P. Dutton), Second Treatise, sec. 21, p.127. 3The Spirit of the Laws, XI. 4First Inaugural Address (March 4, 1801). sPrinciples ofEthics, II, pp. 212-13. IDEAS ON UBERTY ... the cautious thinker may reason:- ~lfin these personal affairs, where all the conditions of the case were known to me, I have so often miscalcu lated, how much oftener shall I miscalculate in political affairs, where the conditions are too numerous, too widespread, too complex, too obscure to be understood. Here, doubtless, is a social evil and there a de sideratum; and were I sure of doing no mischief I would forthwith try to cure the one and achieve the other. But when I remember how many of my private schemes have miscarried; how speculations have failed, agents proved dishonest, marriage been a disappointment; how I did but pauperize the relative I sought to help; how my carefully-governed son has turned out worse than most children; how the thing I desperately strove against as a misfortune did me immense good; how while the objects I ardently pursued brought me little happiness when gained, most of my pleasures have come from unexpected sources; when I recall these and hosts of like facts, I am struck with the incompetence of my intellect to prescribe for society. And as the evil is one under which society has not only lived but grown, while the desideratum is one it may spontaneously obtain, as it has most others, in some unforeseen way, I question the propriety of meddling."

HERBERT SPENCER, The Man versus the State Juliana Geran Pilon Facing the Moral Attack on Capitalism Is it not paradoxical that after emerging like the phoenix from the ashes of the Gulag Archipelago Alex ander Solzheni tsyn should speak out against the land of milk and honey? Is it not ironic that after having known starvation and tor ture he should attack the enviable-and surely envied comforts of the West? And yet, on the occasion of the Harvard Univer sity commencement on June 8, 1978, the man who could well be called the most significant moral leader of our century, whose challenge to the con science of mankind may prove to have been the ultimate test for our sclerotic spiritual fiber, accused us of moral myopia, of pretending not Dr. Pilon has taught and wrlUen extensively, In the fields of social and political philosophY. She Is now Visiting SCholar and Earhart Fellow at the Hoover Institution on War, Revolution and Peace, Stanford University, Stanford, California.