Nineteenth-Century Theories

1. John Stuart Mill (*)

I remarked in "The Case for the Minimal State" (The Freeman, November 1979) that we might get some help in dealing with the central problems of government power by examining the answers offered over the years by the great political thinkers. But I suggested it might be more interesting to do this rather in the reverse of their chronological order, and begin with the latest answers first. We accordingly began with the recent book by Robert Nozick, Anarchy, State, and Utopia. I should like now to turn to some of the answers offered in the nineteenth century.

To try to present the whole of nineteenth-century thought on this subject would in itself require at least a full-length book and probably a repetitious one. So I shall confine myself to the answers offered by three or four outstanding writers who seem to me to offer representative approaches, beginning with John Stuart Mill and Herbert Spencer. (**)

Mill's main discussion of the problem occurs in Volume II (Book V, Chapters I and IX) of his Principles of Political Economy, first published in 1848. When one recalls that Mill was brought up in the laissez-faire tradition, some of his conclusions may seem surprising.

He begins by distinguishing between the "necessary" and the "optional" functions of government. The first are those which "are either inseparable from the idea of government, or are exercised habitually and without objection by all governments." The second are those functions of which the "expediency of its exercising them does not amount to necessity" and "on which diversity of opinion does or may exist."

Mill's Extended List of Necessary Functions of Government

The necessary functions of government, he insists, are "considerably more multifarious than most people are at first aware of." The contention, for example, that "governments ought to confine themselves to affording protection against force and fraud," and "that, these two things apart, people should be free agents," is much too narrow. What about, for example, the laws of inheritance? Not only is the government obliged to decide what happens to an estate when there is no will; it must pass on the validity of a will; it must decide among litigants.

Again, the government must enforce contracts. It must decide what contracts are fit to be enforced. (A contract to do something contrary to law? A contract to sell oneself into slavery?) The state must also establish civil tribunals to settle disputes. It must keep a registry of facts, such as births, deaths, marriages, wills and contracts, and judicial proceedings.

It must decide on the legal competency of children, or alleged lunatics, and provide for guardians. It may undertake the function of coining money, and of prescribing a set of standard weights and measures. It may make or improve harbors, build lighthouses, make surveys for accurate maps and charts, raise dykes to keep the sea out, or embankments to keep rivers in. National governments may build roads, and municipal governments may pave, light, and clean the streets. "Examples might be indefinitely multiplied without intruding on any disputed ground."

In a later chapter, Mill considers some of the reasons for limiting government power. "There is a part of the life of every person who has come to years of discretion, within which the individuality of that person ought to reign uncontrolled either by any other individual or by the public collectively.... A second general objection to government agency is that every increase of the functions devolving on the government is an increase in its power -- which may soon become arbitrary.' ... A third general objection to governmental agency rests on the principle of the division of labor. Every additional function undertaken by the government is a fresh occupation imposed upon a body already overcharged with duties. A natural consequence is that most things are ill done; much not done at all."

There follows a long description of the reasons why, in general, private enterprise and initiative are more efficient than government in carrying on any enterprise. In every instance these reasons are more than sufficient, Mill concludes, to throw "the burden of making out a strong case, not on those who resist, but on those who recommend, government interference." Laisser-faire, in short, should be the general practice: every departure from it, unless required by some great good, is a certain evil. He supplements this with a recital of the incredible restraints on business imposed historically in seventeenth-century France and elsewhere.

But then Mill turns to what he regards as the "exceptions" to the generally beneficent rule of laissez-faire:

The proposition that the consumer is a competent judge of the commodity, can be admitted only with numerous abatements and exceptions.... The uncultivated cannot be competent judges of cultivation. Those who need most to be made wiser and better, usually desire it least, and if they desired it, would be incapable of finding the way to it by their own lights.... Education, therefore, is one of those things which it is admissible in principle that a government should provide for the people....

With regard to elementary education, the exception to ordinary rules may, I conceive, justifiably be carried still further ....

It is therefore an allowable exercise of the powers of government, to impose on parents the legal obligation of giving elementary instruction to children. This, however, cannot fairly be done, without taking measures to insure that such instruction shall be always accessible to them, either gratuitously or at a trifling expense.

The one safeguard Mill insists on is that "the government must claim no monopoly for its education."

More Exceptions

Mill continues with his "exceptions" to the principle of laissez faire. "Insane persons are everywhere regarded as proper objects of the care of the state." "It is right that children and young persons ... should be protected, as far as the eye and hand of the state can reach, from being overworked." "Cruelty to animals" should be forbidden. "The law should be extremely jealous" of all "engagements for life" -- including marriage. If it grants a monopoly for a private road, canal, or railway, the state "should retain, and freely exercise, the right of fixing a maximum of fares and charges."

The state should have the right to diminish the hours of adult labor.

Mill approves the Poor Laws, and endorses the principles of the Poor Law of 1834. "The claim to help, created by destitution, is one of the strongest that can exist." But the problem is "how to give the greatest amount of needful help, with the smallest encouragement to undue reliance on it." For "if the condition of a person receiving relief is made as eligible as that of the laborer who supports himself by his own exertions, the system strikes at the root of all individual industry and self-government." Yet we cannot depend on "voluntary charity"; "In the first place, charity almost always does too much or too little:  it lavishes its bounty in one place, and leaves people to starve in another. Secondly, since the state must necessarily provide subsistence for the criminal poor while undergoing punishment, not to do the same for the poor who have not offended is to give a premium on crime."

Mill goes on to recommend government subsidies for colonization, for "scientific researches," and for other modes "of insuring to the public the services of scientific discoverers."

And as a final argument for extending government power still further, he adds: "The intervention of government cannot always practically stop short at the limit which defines the cases intrinsically suitable for it. In the particular circumstances of a given age or nation, there is scarcely anything really important to the general interest, which it may not be desirable, or even necessary, that the government should take upon itself, not because private individuals cannot effectually perform it, but because they will not."

An Open-Ended Formula

This last argument is capable of serving as an excuse for almost any arbitrary government intervention whatever. Mill ends by granting most of the contentions of the present-day statists. As he keeps adding to his list of "exceptions" to the general rule of laissez-faire, he gradually seems to forget all his earlier warnings against piling an unmanageable number of functions on the state and building excessive powers that can more easily be abused. In many of his exceptions he unconsciously takes it for granted that the state will necessarily do better than private initiative. He overlooks the possibility that scientists may be subsidized on the basis of favoritism or that the subsidized projects will be selected on the basis of political rather than scientific appeal.

After having warned us that the state may carry out its delegated powers very badly, he assumes in particular instances that they will carry out these powers very well. He rightly approved the restrictive principles of the Poor Law of 1834, which required from the applicant for relief, as Nassau Senior put it, "monotonous and uninteresting" toil in a workhouse, so that he would retain an incentive to become again as soon as possible an independent laborer. What Mill did not foresee was the immense political difficulty of retaining such a disciplinary system once relief was embarked upon. He did not foresee that this disciplinary system would soon come to be regarded by a large part of the public as needlessly harsh and even heartless. The sentimental but powerful pen of Charles Dickens, for example, was shortly to make the retention of the workhouse system impossible. The almost inevitable tendency in any relief system is for demagogic politicians to remove one by one all the original restraints and safeguards and to load the relief rolls to the point where work incentives are destroyed, the national budget becomes chronically unbalanced, and a progressive inflation sets in.

Even more broadly, what Mill overlooked was that once these broad powers of control were put in the hands of the state, under a popularly-elected government, that government would be very tiny -- likely to adhere to the sound economic (and anti-interventionist) principles that Mill, and other economists of his school, were recommending in their textbooks, but would enact popular prejudices leading to inflation, to price controls, to "soak-the rich" taxes, to the redistribution of wealth and income, to anti-capitalistic and anti-productive policies of every other kind, and incidentally to the eventual destruction of liberty.

In his essays on Liberty, on Representative Government, and on The Subjection of Women, Mill made important contributions to political theory. But on the central question of what ought to be the limits of government power, he clearly granted too much. He left unanswered the great problem: How can we retain interventionist democratic government and yet prevent majority rule from degenerating into mob rule?

2. Herbert Spencer (***)

Herbert Spencer (1820-1903) was the 19th century's philosopher of evolution. He aspired to universal knowledge. What he called his Synthetic Philosophy ran to ten volumes. They included First Principles (1862), followed by volumes on The Principles of Biology, The Principles of Psychology, The Principles of Sociology, and The Principles of Ethics. Spencer also wrote at least eight other books.

But his earliest published work was a pamphlet, The Proper Sphere of Government, which he wrote at the age of 22, and his first important book was Social Statics, published in 1851. These publications advocated what would today be called, and was in fact called at the time, "an extreme form" of laissez faire.

The limitation of state power remained 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 essentially 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 Versus 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 definitive views on the subject. Let us summarize and analyze them.

After some prior discussion, Spencer arrives at what he calls "a formula of justice: ... Every man is free to do that which he wills, provided 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 40 years earlier, but I regret that it seems tome vague and unsatisfactory

In The Principles of Ethics Spencer was aware of criticisms that must in the meantime have been made of it by others, for he immediately proceeds to deal with one of them:

A 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 may be 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, mistake 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 formula does not in fact countenance actions that it does countenance on its face, then it has not been satisfactorily 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 competitor, the prospects of B may be correspondingly 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 similar cases, but there are also border line cases. If A and B have neighboring 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 if it is so, then I much prefer the formula of John Locke in 1690: "Freedom of men under government is to have a standing rule to live by, 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 formula that embodied these specifications would again fall short unless it spelled out what these just and minimal 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 specification that I can at present remember is Thomas Jefferson's call for "a wise and frugal government, which shall restrain men from injuring 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 minimal state does not rest solely or even mainly on his own "formula for justice." Though he does not embrace the doctrine of Natural Law, he does believe that man has certain inherent rights which we recognize by "a priori intuition" or "a priori cognition." 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:

If it is true that a generation ago landowners and capitalists so adjusted public arrangements as to ease themselves and to press unduly 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 maintaining the public agencies, advocate the multiplication of them.

It is not true, then, that the possession of political power by all ensures justice to all. Contrariwise, experience makes obvious that which should have been obvious without experience, that with a universal 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 insofar as this is done, the law of equal freedom must be broken. (5)

He sums up:

One conclusion, however, is clear. State burdens, however proportioned 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 directly and not indirectly pay it....

Had each citizen to pay in a visible and tangible form his proportion of taxes, the sum would be so large that all would insist on economy in the performance of necessary functions and would resist the assumption 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 dishonest, of obtaining benefits at other men's expense.

During the days when extensions of the franchise were in agitation, a maxim perpetually repeated was "Taxation without representation is robbery." Experience has since made it clear that, on the other hand, representation without taxation entails robbery. (pp. 219-20)

A Duty to Protect

In his chapter on "The Duties of the State," Spencer concludes that there is in effect just one: to protect the citizenry against external and internal aggression -- against foreign enemies and against its law breakers. And in the following chapter on "The Limits of State Duties," he asserts:

The question of limits becomes the question whether, beyond maintaining justice, the state can do anything else without transgressing justice. On consideration we shall find that it cannot....

If justice asserts the liberty of each limited only by the like liberties of all, then the imposing of any further limit is unjust; no matter whether the power imposing it be one man or a million of men.... We do not commonly see in a tax a diminution of freedom; and yet it clearly is one. The money taken represents so much labor gone through, and the product of that labor being taken away.... "Thus 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 carried, to that extent the citizens become slaves of the government. (pp. 241-43)

Examples Galore

Though Spencer insisted constantly 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 "Over-Legislation," "State Tamperings with Money and Banks," "The Collective Wisdom," and many others.

So in the Principles he continued to cite case after specific case. Of drafting laws, for example:

"The judges themselves exclaim against the bungling legislation they have to interpret: one judge saying of a clause that he 'did not believe its meaning was comprehended either by the draftsman who drew it' or 'the parliament that adopted it,' and another declaring that it was 'impossible for human skill to find words more calculated to puzzle everybody.' As a natural consequence we have everyday appeals 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: "In this we have frequent changes where changes are undesirable. We have mixed systems: decimal, duodecimal, and nondescript. Until recently we had two scarcely distinguishable pieces for three-pence and four-pence" etc. (p. 253)

Socialistic Legislation

In a discussion on "socialistic legislation," Spencer excoriates the then Prime Minister, Lord Salisbury, for sneering at basic principles and saying: "We ought first to discuss every subject on its own merits." This is the method, comments Spencer, which has been followed by those legislators who, throughout past thousands of years, have increased human miseries in multitudinous ways and immeasurable degrees by mischievous laws. Regard for "the merits of the case" guided Diocletian when he fixed the prices of articles and wages of workers, 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, prescribed qualities and modes of manufacture, and appointed searchers to see that things were made as directed, were similarly prompted by considerations of 'the merits of the case': evils existed which it was obviously 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 numberless 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 contrast between the amazing accomplishments of free and spontaneous social cooperation and the immense harm wrought by multitudinous government interventions:

The average legislator, equally with the average citizen, has no faith whatever in the beneficent working of social forces, notwithstanding the almost infinite illustrations 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 resulted from the spontaneous cooperation 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 governmental obstruction; yet, ignoring all this, he assumes that if a good is to be achieved or an evil prevented, Parliament must be invoked. He has unlimited faith in the agency which has achieved multitudinous failures, 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 isolated 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 expressing 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.

Notes

*  From the January 1980 issue of The Freeman

**  Mr. Hazlitt's treatment of Herbert Spencer begins on page 114

***  From the August 1980 issue of The Freeman.

1. Principles of Ethics, Vol. II (Indianapolis: Liberty Classics), Ch. 6, p. 62

2. Two Treatises of Civil Government (Everyman's: E. P. Dutton), Second Treatise, sec.  21, p. 127.

3. The Spirit of the Laws, XI.

4. First Inaugural Address (March 4, 1801).

5. Principles of Ethics, II, pp. 212-13.

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