II. Hodgskin on Natural Rights, Natural Property, and the Condemnation of Law

Thomas Hodgskin was a cashiered British naval officer, a popular writer on economics and politics, and an early editor of The Economist (1846–1855).Footnote ¹⁵ His major works included An Essay on Naval Discipline (1813), Labour Defended against the Claims of Capital (1825), Popular Political Economy (1827), and The Natural and Artificial Right of Property Contrasted (1832). Hodgskin sought to combine Lockean principles of self-ownership and rights to the fruits of one's labor, a labor theory of value that implied the unnaturalness and illegitimacy of income based on returns to capital, and a Smithian belief that harmonious and mutually beneficial economic order arises insofar and only insofar as natural rights are recognized and respected. Hodgskin broke with utilitarianism in the early 1820s at least in part because leading utilitarians—e.g., James Mill—supported a ban on labor organizing. More fundamentally, Hodgskin rejected Bentham's dismissal of natural rights and Bentham's insistence that all rights are created by the command of the sovereign. Due to his defense of the rights of labor and his condemnation of interest, rent, and profits, Hodgskin is often misdescribed as a socialist. In fact, he was a defender of private property rights and voluntary market interactions who held—perhaps mistakenly—that illicit governmental intervention on behalf of owners of capital had diverted a great deal of economic interaction from its natural and beneficial course.

As the title of Hodgskin's best known work, The Natural and Artificial Right of Property Contrasted, Footnote ¹⁶ indicates, Hodgskin contrasts natural rights of property with artificial rights of property. Hodgskin begins the first substantive chapter of this work with extensive passages from Locke's Second Treatise in which, in well-known fashion, Locke grounds each individual's rights over his own labor on that individual's self-proprietorship and grounds that individual's rights over particular external objects on that individual's mixing of his labor with the raw natural ingredients of those objects. Hodgskin is eager to appropriate this Lockean doctrine in order to argue against “Mr. Bentham's impious theory” that legislation, rather than nature or God, establishes rights.Footnote ¹⁷ However, Hodgskin offers his own reformulation of these Lockean themes. It is a reformulation that seems to reveal that Hodgskin had some trouble with the distinction between descriptive regularities and prescriptive rules and, hence, had difficulty assigning a distinct necessary role to each in his account of desirable natural social order.

Hodgskin begins with suggestive claims about a deep connection between one's apprehension of one's “personal identity” or one's “individuality” and one's apprehension of one's ownership of or authority over the elements that make up one's personal identity or individuality.

The idea seems to be that seeing these elements as one's own in the sense of one's rightful holdings is implicated or entailed in one's seeing these elements as constituting one's person (and not some other object or person). To see oneself as a person is to see the elements that constitute oneself as one's own (in the sense of rightful possessions). In whatever manner we read these passages concerning self-ownership, we can see that Hodgskin takes an individual's rights to rest on some bedrock natural feature of the rightholder, some morally fertile feature of each individual rightholder in virtue of which that rightholder possesses a certain set of natural rights. So Hodgskin's doctrine seems to embody what I have called the supervenient conception of rights.

A crucial indication of this supervenient conception is that any person's normal workaday observation of another individual is taken to be sufficient to reveal that individual's natural rights to the observor. It is at least a near implication of a supervenient conception of rights that the recognition of rights should be a fairly easy and straightforward process. Simple, uncorrupted people and, perhaps, especially children should readily recognize the rights of those around them. And Hodgskin does affirm that the simple smith or carpenter has this awareness of natural rights as do “children long before they ever hear of law,” i.e., of legislation.Footnote ¹⁹

We have seen that Hodgskin offers a reformulation of Locke's affirmation of self-ownership. Here is Hodgskin's reformulation of the Lockean move from the “mine-ness” of one's labor to the “mine-ness” of that to which one has extended one's labor:

According to Hodgskin, each person may dispose of his property for his “own separate and selfish use and enjoyment.”Footnote ²¹ Indeed, the whole order of natural rights exists to serve [t]he great and immediate object of all man's exertions [which] is man's own happiness.”Footnote ²² Justice is to be administered so that “each man may be secured in the possession of what he produces, and producing it, what he owns, and thus be enabled to feed and clothe himself.”Footnote ²³ Along with Locke, Hodgskin holds that persons' moral rights over themselves, their labor, and their legitimately acquired possessions serve and somehow have their rationale in the propriety of each man's pursuit of his own happiness.Footnote ²⁴

As with Hodgskin's remarks on behalf of self-ownership, there is a reading of Hodgskin's doctrine of property rights in external objects that reduces those rights to claims about how the world is—i.e., how nature or God has arranged the world to be.

Through their individual powers nature also gives to each individual “her separate gifts—as, for example, the fish she bestows on him who baits a hook and watches the line” and none of these gifts can be “confounded with those she gives to another.” Thus, nature or God “gives to labour, if violence and wrong interfere not, whatever it can make.”

The obvious question is, why is the violence that transfers some product from its producer to another wrong? Why isn't an object that is transferred by force or fraud as much a gift of nature or God to its recipient as an object held by its initial appropriator or producer is a gift of nature or God to that producer (until someone else takes it by force)?

It is striking that Hodgskin's answer is that forced transfers are wrong in virtue of not being natural, i.e., in virtue of not being in accord with the way the world actual is. We are told that such forced transfers are wrong because “it must be at all times more difficult for one man to take, by force, from another what the latter has already made, than to make something similar for himself.”Footnote ²⁷ Nature condemns forced transfers by “making it generally more difficult and dangerous to take from another, than for each, by his labour, to provide for himself.” Forced transfers are unnatural and wrong simply because they run contrary to the actual course of human existence.

Of course, Hodgskin recognizes that the world is full of forced transfers; indeed, he is all about complaining about those transfers. To condemn these forced transfers Hodgskin has to hold that somehow they are unnatural and, hence, are contrary to nature's or God's arrangements for human life. Hodgskin must be thinking that such transfers are, at least characteristically, the product of legislation; they are the product of the legislative creation of “artificial” property. For this reason, these forced transfers are artificial, unnatural, and, hence, wrongful. Unfortunately, if the “natural” is that which actually and regularly occurs, legislatively induced transfers are as natural as producers retaining the fruits of their labors. Hodgskin cannot mark off forced transfers as wrongful by showing that they are less a fact of human life than producers retaining possession of their creations. In order successfully to mark off the forced transfers as wrongful, he would have to show that they violate the rights of the producers—rights which are not themselves established by the (alleged) factual regularity that producers retain their products.

So, we see in Hodgskin an unfortunate tendency to identify or ground the propriety of a certain pattern within human life with or on the factual occurrence of that pattern. This tendency explains a feature of Hodgskin's position that we shall come to shortly, namely, that Hodgskin does not seem to include a distinct normative element—the compliance of individuals with norms of conduct—among the conditions that explain the “admirable harmony”Footnote ²⁹ of natural market orders. Thus, Hodgskin seems to see this admirable harmony as being entirely the product of factual regularities of human action.

Two other aspects of Hodgkin's views about natural rights need to be mentioned before turning to his notion of admirable harmony. First, Hodgskin holds that an individual's natural right to any parcel of land depends upon that individual's current occupancy and cultivation of that parcel.Footnote ³⁰ Hence, rental income from land is illicit. In virtue of his absence the putative lessor loses his property right, and in virtue of his presence and engagement with the land the putative lessee acquires a natural right to it.Footnote ³¹ This is as it should be for Hodgskin because the payment of rent transfers the fruits of the current cultivator's labor to the nonlaboring prior owner and thereby violates the principle that all remuneration should track labor performed.Footnote ³²

Hodgskin does not mention a comparable occupancy and use condition for made objects, e.g., chiseled stone hatchets. And one would expect that he would allow the producer of such a hatchet to let it lie around for a week or two without thereby losing his right to it. (Yet, if there can be absentee ownership of hatchets, why can't those owners lease their hatchets to willing leaseholders and thereby receive licit rental income?) Hodgskin does, however, suggest a basis for differentiating between chiseled stone hatchets and parcels of cultivated land. Unlike chiseled hatchets land that is left alone quickly reverts to its natural state.Footnote ³³ In Lockean terms—which Hodgskin does not employ here—Hodgskin's dubious claim is that labor invested in stone hatchets (and also less clunky and more finely-tuned artifacts) persists, but the labor invested in cultivated parcels dissipates (very rapidly) and, hence, the rights to the (formerly) cultivated parcels withers away. Only a very strong premise about the dissipation of labor invested in land would allow Hodgskin to endorse a labor-mixing account of property rights in cultivated parcels while rejecting all absentee ownership of land.

Another and perhaps somewhat conflicting aspect of Hodgskin's natural rights view is that individuals may readily acquire rights to very unequal holdings.

Note that Hodgskin had better stick to something like an invested labor, rather than an occupancy and use, basis for property rights. For there will be no way for really productive people continuously to occupy or use all their earned and rightfully held automobiles, airplanes, and vacation homes. Also, and nicely in accord with his view that rightful possession is naturally occurring possession, Hodgskin maintains that those who are more capable of productive labor are also more capable of defending their resulting more extensive possessions.Footnote ³⁵ Hence, the less industrious and skillful will still be naturally motivated to seek their happiness through their own productive efforts rather than by attempting to seize the heaps and heaps earned by the rich.

Hodgskin was clearly taken with the Smithian notion of highly articulated and beneficial economic order arising naturally out of the actions of individuals who aim not at that order but rather at the satisfaction of their own interests. However, specifying what it means for an order—a harmony—to arise naturally is not a totally straightforward matter. Saying as Hodgskin does that such order is not dependent upon legislative design does not yet identify the factors that do give rise to nondesigned, nonlegislated, order. What are those factors? According to Hodgskin, admirable harmony arises out of the combination of people's desires to feed and clothe themselves and the diversity of people's faculties and circumstances.

“[T]he pursuit of individual happiness” in combination with these diversities among men and nations leads to a division of labor which tends to procure “subsistence for all, and tends to make society happy” even though these ends are “not contemplated by the individual.” The greater the number of people who enter “this system of natural social order,”Footnote ³⁷ the more pronounced is the harmonizing role of the division of labor. “As mouths, which mean wants, are multiplied, so are hands, talents, and powers, and exactly in that proportion facilities for extending division of labor and easily supplying the wants of all.”Footnote ³⁸ Hodgskin's culminating claim is that,

Unfortunately, Hodgskin's invocation of an over-ruling Providence which operates through “decrees of nature” that possess “an irresistible power which man can neither change nor influence,”Footnote ⁴⁰ suggests that factual truths about human conduct, e.g., that people seek food and shelter, combined with factual truths about how people attain what they desire, e.g., they work to attain food and shelter, themselves fully explain the existence of the “natural social order” that Hodgskin so prizes.

However, if the “natural social order” is entirely the product of factual regularities in human action and factual truths about means and ends, then the existence of that order does not at all depend upon recognizing and abiding by people's moral rights; and, so, there is no point in proclaiming that there are such rights and urging their recognition. If all natural principles are nonmoral factual regularities, then there is no room or need for a doctrine of natural moral rights—however precisely those rights are conceived. This problem for Hodgskin is what I had in mind earlier when I said that he has difficulty distinguishing between descriptive regularities and prescriptive norms and, hence, difficulty in assigning to each a distinct necessary role in the explanation of natural social order.

An instructive contrasting account of the conditions for admirable harmony is F. A. Hayek's discussion of the need for both “natural” and “conventional” rules, that is, factual regularities and prescriptive rules that proscribe theft and prescribe the fulfillment of contracts. The second category of rules—which Hayek labels “conventional”—are prescriptive in that they are “rules which do not simply follow from [persons'] desires and their insight into relations of cause and effect, but which are normative and tell them what they ought to or ought not to do.”Footnote ⁴¹

For Hayek, these “conventional” norms and general compliance with them combine with factual regularities about human conduct, for example, that people will work more if they expect to earn more, to engender the sort of complex coordination to mutual benefit that Hodgskin calls “admirable harmony.” Due to their role in fostering cooperative interaction, Hayek takes these norms to be the true law. Legislation, which is a willful creation and which, according to Hayek, characteristically stymies the development and inhibits the operation of this true law, cannot itself be true law. In contrast, precisely because Hodgskin tends to leave no room for independent prescriptive rules as crucial factors in the emergence of admirable harmony, there is no room in Hodgskin's philosophy for a body of true law that stands in sharp contrast to legislation. Hence, as we are about to see, Hodgskin's powerful attack on legislation is taken by him to be an attack on law as such.

In fact, due of his identification of law with willful legislation, Hodgskin must assert—very mistakenly—that anti-authoritarian movements in British history never really appealed to law. The “reformers in the olden time” who seem to have appealed to common law against assertions of monarchical authority actually “struggled only for liberties and rights, and struggled avowedly against the law.” In the English civil wars, “Our ancestors contended not for but against the law.” And the Revolution of 1688 was fought on behalf of the rights of the people and “against the authority of the sovereign and the law.”Footnote ⁴² What then is this law which all proponents of natural liberties and property must reject?

Law begins with the warrior who conquers and enslaves the honest and productive farmer and all current forms of the transfer of wealth from the productive to the parasitic grow out of this enslavement and are supported and directed by legislation. Law, that is to say, legislation began as the work of those “who followed no trade but war, and knew no handicraft but robbery and plunder.” Legislation is now created and enforced by the descendents of these predators.Footnote ⁴⁴

Every interference by “the law of politicians” with the great natural social order that grows up from man's pursuit of happiness deranges the social order and causes “great mischief.”Footnote ⁴⁶ Law itself is the enemy of peace and order. “If peace and order be good things, law cannot be a good thing.”Footnote ⁴⁷ “Law” and “order” should never to be used except “to signify totally opposite conditions of society.”Footnote ⁴⁸

Given the factual naturalness of individuals retaining the fruits of their labor or those fruits that they get in voluntary exchange for their products, one cannot help being surprised that predation and legislation have taken hold in the world. If the peaceful and harmonious order that Hodgskin describes is a product of “decrees of nature” that possess “an irresistible power which man can neither change nor influence,”Footnote ⁴⁹ then how could that order ever be displaced? The answer would seem to be that provided by Hayek; this order also depends on prescriptive norms, compliance with which is hardly irresistible.

Hodgskin presents himself as a mainstream Lockean with respect to the rights of self-ownership and rights to the fruits of one's labor; and in his reformulations of Lockean doctrine he seems to follow Locke in subscription to a supervenient conception of basic rights. Nevertheless, his emphasis on the naturalness of the social order that he favors carries him toward the view that this order is irresistibly programmed into the factual regularities of the human condition. However, if such a social order is programmed into these factual regularities, we should never observe the artificial economic relationships and institutions that Hodgskin himself observes and condemns. In addition, we have noted that Hodgskin identifies law with (artificial) legislation; hence, he sees condemnation of legislation as a condemnation of law. As we shall see, in this respect he stands in stark contrast to Spooner who draws a sharp line between law—that is, the natural law—and legislation.

III. Herbert Spencer on Natural Rights as Norms of True Expedience

From the 1860s into the 1880s, Herbert Spencer was among the most prominent philosophic figures in the English speaking world. Although his first major work, Social Statics (1851)Footnote ⁵⁰ was in political philosophy, he subsequently sought to present a systematic philosophical doctrine that incorporated and explained the truths of biology, ethics, political philosophy, psychology, and sociology. Aside from Social Statics (which was radically revised in the decades following 1851), his major works included The Principles of Psychology (1855), The Principles of Biology (1864–1867), First Principles (1867), The Principles of Sociology (1876–1896), The Principles of Ethics (1879–1897), and The Man versus the State (1884). Within political philosophy, Spencer began as a radical libertarian who invoked the language of natural rights or justice or the law of equal freedom on behalf of individual freedom and strict limitations on governmental authority. Nevertheless, he always sought to trace the justification of these rights or principles of justice or freedom back to a correctly deployed principle of general utility. He also sought to integrate his contentions in political philosophy with an illuminating account of the evolution of mankind and of social order. It is a true bromide of Spencer scholarship that through his adult life Spencer's political position became less radical and more conservative. Most notably, he abandoned two striking positions taken in Social Statics. The first radical—albeit not necessarily libertarian—position was the social ownership of the earth. The second radical—and libertarian—position was the right of each individual to ignore the state.Footnote ⁵¹

For the context-setting purposes of this essay, we need to consider the views of the early Herbert Spencer. I mean the really early, most Lockean-sounding Spencer who authored the rarely read The Proper Sphere of Government (1842–1843),Footnote ⁵² and the not-quite-so-early and less Lockean-sounding Spencer who authored Social Statics. In The Proper Sphere of Government, Spencer invokes the “natural rights of man” and natural rights appear as the measure of justice and legitimate legislation. “[N]o body of men can pretend that ‘justice’ requires the enactment of any law, unless they can show that their natural rights would otherwise be infringed.” Corn laws are unacceptable because free trade violates no one's natural rights and an established church is unacceptable because freedom of religion violates no one's natural rights.Footnote ⁵³

Nevertheless, the story that Spencer tells leading up to the affirmation of “natural rights” is decidedly non-Lockean. We are asked to imagine,

In this state of nature, contrary to Locke, there is no governing law of nature. Largely because of this fact, every one of these men soon comes to the conclusion that,

Some individuals are then deputized to settle disputes among these men; hence, “… we have a government springing naturally out of the requirements of the community.” The crucial question, however, is “… what are those requirements” that all have agreed to obey?Footnote ⁵⁶

According to Spencer, the requirements of the community do not include the state's direct provision of the substantive elements of a good social order—e.g., trade, religious life, charitable activities, and systems of communication and locomotion. These components of a desirable social order need not be “designed and constructed” for members of the community by “a supreme power.” In a passage similar to Hodgskin's invocation of over-ruling Providence, Spencer says that people would only want such a designing and constructing government if they thought that “the Almighty” had been so negligent in designing social mechanisms that continuous intervention by government was necessary to keep beneficial social processes on track. However, people are not so foolish. They know or ought to know that thanks to the Almighty's design

Spencer quickly moves to the conclusion that governments are created

Notice, though, that these “natural” rights are not rights superveniently conceived. They are not rights that adhere to individuals in virtue of some bedrock feature (or set of features) that individuals possess as individuals. If they were such rights, then there would not be a stage of human existence in which men live without checks on their action and are subject only to the direction of their impulses. Even in the Lockean-sounding The Proper Sphere of Government, rights are the implications of the basic norms that rational individuals would agree to in order to escape from a condition in which each may blamelessly prey upon others.Footnote ⁵⁹ The directive force of the norms derives from the benefits of general compliance with them; and it is in virtue of these norms requiring that individuals be treated with certain circumspection that we ascribe rights to individuals to be treated with the necessary circumspection. We have here what I have called the beneficial norm conception of natural rights.

For example, a natural right of property is to be affirmed because general respect for the producer's possession of the fruits of his labor is beneficial.

Here are two factual regularities: One will sow only what one expects others will not reap; and others will reap what one sows unless they are subject to a normative rule that establishes one's “certain possession” of the fruits of one's sowing. These two factual regularities will yield the natural evil of a shortage of cultivated products unless a further and prescriptive law of society comes into play, namely, the law that forbids one's seizing what another has produced. The “laws of society” that, according to Spencer, give society its self-adjusting character must be understood to include both factual regularities of human action and patterns of rule compliance.

The problem with legislation is not that it disrupts the underlying factual regularities of human action; legislation cannot do this.Footnote ⁶¹ Rather, the problem is that it directly violates or undermines compliance with the norms—Hayek's “conventional” rules—that must also be abided by if the system of natural liberty is to operate. It is because these norms are crucial to man's happiness that they are the crucial nodes of expediency. “[P]roperty greatly promotes the mental and bodily happiness of mankind; that is, it is expedient.”Footnote ⁶² However, Spencer favors calling “natural” the norm that requires respect for the producer's possession and the right that this norm prescribes because “… there is implanted in every man, a desire to possess, which desire, by the accumulation of property, may be gratified without injury to his fellow-creatures.” And in a manner highly reminiscent of Hodgskin, Spencer adds that “… this fact is in itself ample proof, that individual possession is in accordance with the will of the Creator.”Footnote ⁶³

However, Spencer insists here, as he does throughout his political writings, that this appeal to expediency at large is radically different from empowering the legislature to design and construct the society so as to maximize the “general good”; this is because to authorize the government to aim directly at the “general good” is to authorize government to do whatever it chooses to do. For, “… the expression “general good,” is of such uncertain character, a thing so entirely a matter of opinion, that there is not an action that a government could perform, which might not be contended to be a fulfillment of its duties.”Footnote ⁶⁴

Like Hodgkin, the Spencer of The Proper Sphere of Government is concerned about the “land question.” Yet Spencer is strikingly evasive about rights to portions of the earth. He tells us that, “Man has a claim to a subsistence derived from the soil.”Footnote ⁶⁵ This is a claim to the opportunity to engage in labor and, through that labor, to attain rights to the fruits of that labor. Spencer's primary concern here is to insist that each individual's sound claim to any created good is conditional upon that individual's laboring to produce that good—or, presumably, his laboring to produce whatever he traded away for the created good he now possesses. Spencer insists that this right of each to the fruits of his labor is incompatible with anyone having an unconditional right to the fruits of labor—which would mean an unconditional right to the fruits of others' labor.

The right of each to the fruits of his labor is incompatible with any alleged “poor-law right.”Footnote ⁶⁶

Spencer believed that the rights of many individuals to an opportunity to labor were being infringed by the institutions of his day. But he is very vague about which institutions are responsible for this widespread “want of a field for labor.” Spencer's language suggests that the problem is due to unconditional private property rights in land. Moreover, there seems to be room for him to draw this conclusion because in The Proper Sphere of Government he never offers an argument on behalf of individual rights to portions of the earth. His argument for property rights focuses entirely on the cultivator's crop and not at all on the field that the cultivator has readied for cultivation. In addition, Spencer offers nothing like a Lockean labor-mixing account of property rights that could be applied as readily to cleared fields as to raised crops. In support of rights to parcels of land that have been readied for cultivation, Spencer could have argued that clearers of land need to be able to count on reaping the benefits of their productive activity just as much as do planters and harvesters of crops. If the beneficial protection of the latter requires property rights in the crops, the beneficial protection of the former requires property rights in readied fields. But Spencer never makes this argument.

So we are left without any clear endorsement of property rights in portions of the earth and without any indictment of such rights as the cause of people being “prevented from earning their bread by the sweat of their brow.”Footnote ⁶⁷ Spencer only tells us that people are blocked from exercising their productive capacities by “iniquitous laws” or “oppressive taxation.” It is crucial that “the laws that have induced this disorderly state” be destroyed.Footnote ⁶⁸ Once these “barriers to productive industry, which selfish legislators have set up” are eliminated, society will be restored to “its natural state.”Footnote ⁶⁹

In his much better known, but still early and radical work, Social Statics, Spencer continues to employ the language of rights—though “natural” rights disappear. Even more explicitly than in The Proper Sphere of Government, Spencer endorses the greatest happiness principle as the ultimate normative standard. Yet, again, he rejects any direct appeal to this standard in our deliberations about how we should act or what powers political institutions ought to be granted. “It is one thing, however, to hold that greatest happiness is the creative purpose, and quite another thing to hold that greatest happiness should be the immediate aim of man.”Footnote ⁷⁰ We have a basic concept of happiness, namely, “a gratified state of all the faculties.”Footnote ⁷¹ However, people's faculties differ both in their character and in their degree of development; and for this reason different people have radically divergent conceptions of happiness. Hence, no single formula or (manageable) set of formulae for the achievement of happiness will be an apt guide to everyone's happiness. Moreover, even if we had such a well-defined measure of general happiness, we would not be able in practice to identify the trade-offs among persons' possible gratifications that would best satisfy that measure of happiness.

Fortunately, however, there are deep and persistent facts about human life—certain “fundamental necessities of our position”Footnote ⁷²—in light of which we can see that strict compliance with certain basic norms will most advance happiness in society. The most crucial of these rules are the law of equal freedom and the requirement of negative justice that each is to enjoy or suffer the consequences of his own chosen actions. Spencer, then, appears to be an early advocate of a type of indirect utilitarianism. Nevertheless, this is a bit misleading because Spencer's view was that a necessary condition of the attainment of the greatest general happiness is that everyone's happiness is (maximally?) advanced. So what recommends a basic norm is our recognition—in light of the fundamental necessities of our position—that strict compliance with this norm will advance everyone's happiness.

Indeed, at times general happiness seems to slip very much into the background and the core of Spencer's argument appears to be a move from the propriety of each individual pursuing his own happiness to a claim that each individual has a right to pursue his own happiness. Since each man's pursuit of happiness accords with the “creative purpose,” each individual ought to advance his happiness (in ways that do not diminish the happiness of others). Since each individual's happiness derives from his exercise of his faculties, each ought to exercise his faculties; and since each individual's exercise of his faculties requires that he be free to do so, each has a right to the free use his faculties.

Since this right to liberty is a right possessed by all, the rightful freedom of each must “be bounded by the similar freedom of all.”Footnote ⁷⁴ The fundamental social norm is, then, “Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.”Footnote ⁷⁵

A similar case for a basic right to freedom reappears, without the theological coloration and without any explicit reference to the general happiness, in Spencer's later essay, “The Great Political Superstition.” (1884)Footnote ⁷⁶

Spencer adds that,

But these “natural rights”—the scare quotes are provided by Spencer—lack “ethical character” because, according to Spencer, there is not yet a distinction between those life-sustaining acts that may be performed and those that may not be performed. Spencer seems to hold that this distinction only comes into play when we discover or observe the evolution of constraints on life-sustaining actions, the mutual regard for which is beneficial to each constrained agent. The idea seems to be that the “the conditions produced by social aggregation”Footnote ⁷⁸ guide or nudge us toward these mutually advantageous restraints.

In Social Statics, the test for whether any more specific right, such as a right to free speech, is to be accepted or rejected is the consistency of that right with the basic right to equal freedom. Applying this test, Spencer judges that there can be no private right to parcels of the earth because private ownership of the earth infringes upon the equal liberty of the non-owners. For “… if the landowners have a valid right to [the earth's] surface, all who are not landowners, have no right at all to its surface. Hence, such can exist on the earth by sufferance only.”Footnote ⁷⁹ Thus, Spencer quite quickly concludes, the surface of the earth is naturally owned by “the human race.”Footnote ⁸⁰ Or, within any society, “the lawful owner” of the land is “Society.”Footnote ⁸¹ Society will then lease segments of the land to its individual members. Except for the rental payments due to society, society's tenants will have full private property rights over the fruits of their labor—although is not clear whether an individual tenant will have a private right to his “surplus produce” simply because it is the product of his permissible laborFootnote ⁸² or because the tenant's contract with society confers “the exclusive use of the remainder of that produce” upon him.Footnote ⁸³

As previously mentioned, Spencer later abandons the social ownership of land although he claimed that he continued to accede to the substance of this doctrine by affirming that the “ultimate proprietorship” of all land “vests in the community”Footnote ⁸⁴ and that, if anything, the taxes actually paid by private landholders exceed the rental payments they would be making to land-leasing society.Footnote ⁸⁵ However, with the abandonment of the social ownership and societal leasing doctrines, Spencer needs an alternative account of the basis for private property rights in land. Yet he seems never even to realize that he needs such a substitute account.

For our purposes, the key conclusions to be drawn from this examination of Spencer on rights is that even when Spencer sounded most Lockean, namely, in his very early The Proper Sphere of Government, he operated with a non-Lockean, beneficial norm understanding of rights and, indeed, he quickly abandoned the language of natural rights. Unlike Hodgskin, Spencer never offered anything like a Lockean labor-investment theory of private property rights. In fact, at his most radical vis-à-vis the ownership of land, Spencer opted for social ownership (whatever that exactly would amount to). When in later years he retreated from the social ownership doctrine he seems to have felt no need to provide an alternative account of the rights to land that he wished to affirm.

IV. Spooner on Natural Law, Natural Justice, and Natural Rights

In the United States during the nineteenth century, rights-based, radical libertarianism was most forcefully represented by the individualist anarchists who flourished from the 1830s into the 1890s. The founder of this school was Josiah Warren (1798–1874) author of Equitable Commerce (1846) and founder of the individualist utopian community of New Harmony, Indiana. Warren combined a Lockean affirmation of “the sovereignty of the individual” and of the individual's right to the fruits of his labor with the conviction—which we have also seen in Hodgskin—that only income from labor is legitimate.Footnote ⁸⁶ During the last couple of decades in which this individualist anarchist movement flourished, its flagship publication was the journal Liberty which was edited by Benjamin Tucker.Footnote ⁸⁷ It should be noted that by the late 1880s Tucker himself abandoned the notion of natural rights for the sake of an (allegedly) more hardheaded philosophical egoism.

Beginning with his anti-slavery treatises and culminating in his essays on natural law and natural rights, Spooner staked out his position as the most philosophically engaging, forceful, and Lockean voice among the individual anarchists. Spooner's central message was that unchanging and universal principles of natural justice disclose the criminality of state action and legislation. And at the core of natural justice and law is the very Lockean-sounding affirmation of “a man's ownership of himself and the products of his labor.”Footnote ⁸⁸ Even had Spooner lived to see some of his fellow anarchists turn to philosophical egoism, it is most unlikely that Spooner would ever have abandoned his natural rights approach.

Spooner's most sustained treatments of natural law, natural justice, and natural rights appear in his 1882 pamphlet, Natural Law and his lengthy 1886 open letter, A Letter to Grover Cleveland. Footnote ⁸⁹ One gets two immediate impressions upon reading the former essay. The first is that Spooner is quite unclear about the relationship among natural law, the science of justice, and natural rights—e.g., about whether natural rights are the deliverances of some independently recognized natural law, or whether the natural law is simply the body of proscriptions and prescriptions required by independently identified natural rights. The second impression is that Spooner is committed to some sort of moral intuitionism; the natural law or people's natural rights are detected by some special faculty or moral sense. With respect to the first impression, I want to offer a reading of Spooner that gives priority to natural rights; natural justice and natural law are best understood as expressions of the constraints required by those rights. With respect to the second impression, I want to suggest that there is more to Spooner's account of natural rights than this simple invocation of moral intuition.

Spooner's Natural Law opens with three claims about the science of justice. First, it is the science of “mine and thine;” it is the science of “all human rights; of all a man's rights of person and property.” Second, it is the science “which alone can tell any man what he can, and cannot do … without infringing upon the rights of any other person.” Third, it is the science—indeed, the only science—of peace; it “alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.”Footnote ⁹⁰ I conjecture that the order of these three claims is significant. The science of justice starts with an identification of man's rights which are (or are presumed to be) rights “of person and property.”Footnote ⁹¹ This identification of rights enables us to go on to specify what human conduct is permissible or even morally protected and what human conduct is impermissible. And, it is our understanding of what conduct is permissible or even morally protected and what conduct is impermissible that enables us to articulate the conditions under which persons can live in peace with one another or “ought to live in peace, with one another.”Footnote ⁹²

The conjecture that, for Spooner, the conditions for (morally acceptableFootnote ⁹³) peace among persons are to be spelled out in terms of normative propositions about how individuals should or should not behave toward others is supported by his further claims about the conditions for (morally acceptable) peace. For Spooner immediately tells us that there are two basic categories of conditions for that peace. There are the positive conditions, namely, “that each man shall do, toward every other, all that justice requires him to do,” e.g., that “he shall pay his debts, that he shall return borrowed or stolen property to its owner…” And there are the negative conditions, namely, “that each man shall abstain from doing to another, anything which justice forbids him to do,” e.g., that “he shall abstain from committing theft, robbery…” and so on. Whenever men have sought to live in peace with one another they have affirmed one “universal obligation: viz., that each should live honestly towards every other.”Footnote ⁹⁴ And this honesty consists in abiding by the dictates of justice which themselves are expressions of the rights of person and property.

So it is crucial to understand what these bedrock rights are—or what principles of justice manifest these rights. Fortunately, according to Spooner, although the science of justice has to be learned, “it is very easily learned.” It is “made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception.”Footnote ⁹⁵ “Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds.” Indeed, in a passage reminiscent of Hodgskin and indicative of a supervenient conception of rights, Spooner declares that children

Similarly, in “Vices are not Crimes” (1875) Spooner asserts that “Crimes are few, and easily distinguished from all other acts; and mankind are generally agreed as to what acts are crimes.”Footnote ⁹⁷ In his A Letter to Grover Cleveland (1886) he asserts that man's rights are “easily ascertained.”Footnote ⁹⁸ These passages suggest a belief on the part of Spooner in a faculty of moral intuition that reveals to us an array of natural rights. Through the operation of this faculty every sensible person recognizes the criminality of the killing, maiming, enslaving, robbing, and deceiving of one's fellow man and the noncriminality of other actions, even those other actions which manifest various vices.

However, Spooner warns his reader against this reading of rights, as ascertainable by simple moral intuition when he says that natural rights are known through an “almost intuitive perception.”Footnote ⁹⁹ And, indeed, I believe that he offers a rather more complicated two-phase argument on behalf of certain natural rights. The first phase asserts that there are some principles of natural justice—reflective of some, as yet unspecified, natural rights. Within this phase, Spooner offers something like a “best explanation” argument for the existence of natural justice. The second phase proceeds to spell out what is the sensible specification of these natural rights. This project of sensible specification is governed by two ideas. The first idea is that the underlying rationale for rights is that they morally protect each individual's pursuit of happiness against the interfering actions of others. The second governing idea is that the rights that are ascribed to any individual as moral protection for his pursuit of happiness must be “always consistent and harmonious with each and every other man's rights.”Footnote ¹⁰⁰ Despite some variation in their expression, the rights that emerge from this process of sensible specification turn out to be the standard Lockean rights to life, liberty, legitimately acquired property, and the fulfillment of contracts.

According to the first phase of his argument, “… from time immemorial,” men have spoken and written about justice; they have identified various acts as criminal and contrasted criminal with noncriminal acts. If people have not been totally deluded when they have engaged in this practice and if men's claims that legitimate governments are those that act justly have not been “the mere gibberish of fools,” it must be because there is such a thing as natural justice.

If there are no moral rights, if there are no truths of justice, than all of the moral expressions which men have used in their judgments and contentions “should be struck out of all human language as having no meanings.”Footnote ¹⁰² Moreover, if there were no natural rights, that is, if we come into the world “utterly destitute of rights,”Footnote ¹⁰³ nothing we could do could generate any of the moral rights or principles of justice that are embedded in our moral discourse. So if even some of the assertions that men make about justice or injustice are not “the mere gibberish of fools,” there must be some natural rights; there must be some principles of natural justice.

The deep presumption of the many centuries of moral discourse and of attempts to condemn or to vindicate governments is that there is, in fact, a line—wherever precisely it is located—between just and unjust action, between innocent (noncriminal) and criminal action. The best explanation of the soundness of this presumption is the existence of natural justice. Moreover, this natural justice will be a permanent feature of our human existence because the rights that constitute it derive from human nature. Hence, those rights “are incapable of being blotted out, extinguished, annihilated, or separated or eliminated from [any man's] nature as a human being…”Footnote ¹⁰⁵ Those rights must endure as long as human nature endures.

It cannot be denied that even within what I have called the first phase of his argument Spooner strongly—and, strictly speaking, illicitly—anticipates a particular specification of man's natural rights, namely, rights of person and property that bestow upon each individual claims against being subjected to force or fraud. He proceeds as though his making a case that there are some principles of natural justice also amounts to his making a case for his specific understanding of natural justice. Part of my purpose in introducing the idea of a two-phase argument is to explore whether we can acquit Spooner of this illicit move by finding a genuinely second-phase argument in support of the specific natural rights that he wishes to affirm.

A beginning of such an argument can be found in a passage from Natural Law in which Spooner seeks to explain why men who are interacting with one another “cannot avoid learning the natural law, to a very great extent, even if they would.” Or at least we get an explanation of why human interaction is the school in which the natural law is readily learned.

Presumably for the sake of the satisfaction of his individual wants, each person makes certain claims against other men and takes the satisfaction of these claims as his due. He forms certain initial beliefs about what his rights are. But these claims are constantly met with counterclaims that others make on behalf of themselves. The adjustment of claims that proceeds from one's advancing certain initial claims and confronting counterclaims is not understood by Spooner as a matter of bargaining among the parties to settle upon some set of claims that each perceives to be an acceptable modus vivendi. Footnote ¹⁰⁷ Rather, I believe that the adjustment of claims by each party in response to counterclaims by others is understood by Spooner to be a matter of these parties seeking to ascribe to each individual a set of rights that is identical to and harmonious with the set of rights that is ascribed to every other individual.Footnote ¹⁰⁸ I assert a certain right on my own behalf, such as a right to be provided with a nice house. You counter with an assertion of a like right for yourself. These rights are in conflict because my respecting your asserted right may require that I forego the satisfaction of my asserted right. But I cannot dismiss your right to be provided with a nice house while still asserting my right to a nice house. So I have to adjust downward my claims about what is my due (as do others)—to, for instance, a right not to be deprived of a peacefully acquired nice house—so as to arrive at claimed rights such that the ascription of those rights to everyone yields a consistent and harmonious body of rights.

The natural strategy for such an adjustment is the affirmation that “one thing is one man's property and that another thing is another man's property.”Footnote ¹⁰⁹ And perhaps it is not so unreasonable for Spooner to assume that, when it comes to specifying what is mine and what is thine, the plausible view is that my person and my peacefully acquired possessions are mine and your person and your peacefully acquired possessions are yours. If natural rights exist and “each man's ‘rights’ are always consistent and harmonious with each and every other man's ‘rights’,”Footnote ¹¹⁰ it is plausible that—absent modification through contractual agreement—each person's rights will be rights to dispose of his person and (peacefully acquired) possessions as he sees fit.

Still, nothing yet has been said about why each individual has a rational concern for his rights being respected, that is, has a rational concern for being accorded the freedom of disposing as he sees fit of his person and property. Spooner's view is that each individual's freedom to dispose of his person and possessions as he sees fit

Such a restriction violates “the right of each and every individual to judge of, and provide for, his own well-being, according to the dictates of his own judgment, and by the free exercise of his own powers of body and mind…”Footnote ¹¹² Each individual's concern for his own happiness (or well-being) is what makes it rational for him to claim rights against all other individuals. However, a crucial lesson is taught to all by “[t]he dealings of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights…”Footnote ¹¹³ That lesson is that the whole set of rights possessed by individuals must be consistent and harmonious. If we add the natural and Lockean premise that all individuals are equal in their possession of natural rights, we get the conclusion that each person's natural rights must be equal to and consistent and harmonious with each other person's rights. For Spooner the rights that fit that bill and are protective of each person's pursuit of happiness are the rights of self-ownership, the rights to the fruits of one's labor, and the rights to contract for goods and services. (Note the parallel here with Spencer's argument from the propriety of each seeking his happiness to each having an equal and constrained right to pursue happiness.)

Indeed, it seems that the underlying rationale for a system of equal, consistent, and harmonious rights is that it provides to each individual what he needs and can reasonably demand from others as a condition of his attainment of his own happiness (or well-being).

The enjoyment of his own rights constitutes that individual's enjoyment of “the widest possible field, that he honestly can have, for such industry as he may choose to follow…. With the possession of these rights, he must be content.”Footnote ¹¹⁵

A similar appeal to the reasonableness of each person's pursuit of happiness and a consequent natural right to pursue happiness appears in Spooner's 1875 essay “Vices are not Crimes.” For each individual, virtuous actions are those noncriminal actions “on which his physical, mental, and emotional health and well-being depend.” They are the actions that promote the agent's happiness.Footnote ¹¹⁶ Indeed, for each individual, his happiness is “the great purpose and duty of his life.”Footnote ¹¹⁷ Furthermore, individuals differ from one another in their circumstances and physical, emotional, and mental powers and propensities and, therefore, they differ from one another in what sorts of (noncriminal) actions will enhance or damage their respective well-being. Moreover, each individual is both most able and most concerned to determine in his own case which actions are enhancing or damaging. These are questions that “no one can really and truly determine for anybody but himself.”

On the basis of these claims about the reasonableness of each person's pursuit of happiness and each person's need to judge for himself how best to advance his happiness Spooner draws the conclusion that “the highest of all of [an individual's] rights as a human being … is his right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is to him, virtue, and what is to him, vice…”Footnote ¹¹⁸ The affirmation of this basic right to freedom or to the pursuit of happiness is not in conflict with Spooner's affirmation of self-ownership and rights over the fruits of one's labor. As in Locke, the identification of “the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property”Footnote ¹¹⁹ delineates the scope of, and renders harmonious, our respective rightful freedoms.

Finally, in a discussion of conscription in “A Letter to Grover Cleveland,” Spooner suggests a yet more Kantian-sounding argument on behalf of natural rights against deprivations of life and liberty. When government sends a conscript off to war to be blown to bits “as if he were a mere senseless thing” it treats him as if he were “a shell, a canister, or a torpedo;” it “does not recognize him at all as a human being, having any rights of his own…” The conscripting government “… denies [the conscript's] right to any will, any judgment, or any conscience of his own, as a moral being… [I]t takes his own life, as unceremoniously as if he were but a dog.”Footnote ¹²⁰

Despite initial appearances, Spooner offers a nuanced set of arguments on behalf of natural rights. Among the central contentions within these arguments are the strikingly Lockean claims that rational individuals seek their own happiness, that individuals must determine their own course to happiness, that the recognition of others as rational seekers of happiness on a moral par with oneself requires one to acknowledge everyone's equal right to seek happiness and, hence, a moral requirement upon oneself not to infringe upon this right of others, and that a significant component of each individual's constrained right to seek happiness is the right to discretionary control over his own person.

V. Spooner on Property Rights, Legislation, and the Common Interest

Natural rights of self-ownership suffice to condemn slavery and the coercive suppression of vice and imprudence; but they do not as such enable us to assess the justice of people's holdings of extra-personal objects, e.g., in parcels of land, in crops, in manufactured goods. As a basis for such assessment Spooner needs a theory of property rights; and he offers such a theory in the opening sections of his work on intellectual property rights, The Law of Intellectual Property (1855).Footnote ¹²¹ As we shall see, Spooner's doctrine cleaves more closely to Locke's position on property rights than does that of Hodgskin, Spencer, or Spooner's fellow individualist anarchists.

Spooner begins with an apparent divergence from Locke. For he asserts that there are two distinct procedures through which an individual can establish an initial property right in some extra-personal object. Spooner first says that an initial right to a parcel of land is established simply through taking first possession of that parcel whereas initial rights to chattel are established through Lockean labor investment.Footnote ¹²² However, although Spooner says that one's right in a parcel land arises “solely in consequence of one's taking possession of it,”Footnote ¹²³ taking possession of a parcel of land turns out to consist in “bestow[ing] some valuable labor upon it.”Footnote ¹²⁴

Thus, the apparently distinct first mode of just acquisition—acquisition by first possession—merges into the second, standard Lockean, labor-investment mode of just acquisition. A man's right to a labor-transformed parcel of land has the same sort of basis as his right to any other fruit of his labor; if he is deprived of the transformed object without his consent, he is deprived of his rightfully owned labor without his consent. The labor he has bestowed on any natural material “will be lost to him, if he is deprived of the commodity he has taken possession of.”Footnote ¹²⁵

Note the contrast here with Hodgkin's view that a labor-investment account of rights to land will get one no more than occupancy and use rights because the effects of one's labor on land will dissipate as soon as one's occupancy and use ends.

Furthermore, according to Spooner,

Having broken with his fellow individualist anarchists—including Tucker—who held to the occupancy and use standard for just holdings in land,Footnote ¹²⁸ Spooner naturally went on to disagree with them about the legitimacy of rent—even rent on land. Moreover, the fact that one can continue to be the owner of a resource even when another is using it enables one to employ someone else to bestow additional labor upon that resource and still remain the owner of the resultant product.Footnote ¹²⁹

In numerous other ways Spooner follows Locke closely on the question of initial rights to extra-personal objects. The “wealth of nature … was provided for the use of mankind.” But man can effectively make use of this wealth of nature only by “making it private property.”Footnote ¹³⁰ The life of man, and his happiness and well-being depend upon his being able to make things his own. Hence, his natural rights to do as he sees fit in the promotion of his happiness requires that he have the right to engage in initial appropriation from nature.

Spooner argues that the “first comer” cannot be morally bound not to appropriate. Indeed, as Locke argued, to deny individuals the natural right to engage in such appropriation is to hold that people are born with an obligation to starve in the midst of plentiful resources. As Spooner puts it,

In a very nice reversal of Spencer's Social Statics argument for the societal ownership of land, Spooner argues that,

In addition, Spooner maintains that the first comer's acquisition can hardly be said to disadvantage the later comer. Rather, the first comer's transformation of natural materials sets the stage for there being more and better ways for later comers to gain through their own investment of labor. “The first man is a hungry, shivering savage, with all the wealth of nature around him. The last man revels in all the luxuries, which art, science, and nature, working in concert, can furnish him.”Footnote ¹³⁴

Like Locke, Spooner presumes that the difficult task in an account of property rights concerns the explanation of initial rights over extra-personal objects.Footnote ¹³⁵ Once such objects become the rightful possessions of individuals, any mutually voluntary transfer of the objects also transfers those rights. So, in principle, any set of holdings among members of society that results from individuals' engagement in peaceful labor investment and voluntary trade (and people's extraction of compensation for infringements upon their just holdings) is just. Unjust wealth and unjust poverty arise only through rights infringing interference with peaceful acquisition and trade. Spooner, along with his fellow individualist anarchists, held that a crucial instance of unjust and poverty-generating interference was governmental prohibitions on the issuance of credit; this restriction was taken to create an artificial scarcity of credit that greatly skewed the distribution of wealth on behalf of those already in possession of capital and against innocent and honest laborers. We can, however, slide past any discussion of the merits of Spooner's analysis of this issue because even if he were to give up this particular aspect of his condemnation of governmental interference, he could easily retain his basic representation of the role of governmental action and the function of legislation.

The representation that Spooner offers is remarkably like Hodgskin's critique of legislation—with the crucial difference that Spooner is in position to distinguish sharply between law, i.e., natural law, and legislation. For Spooner, the natural law is “applicable and adequate to the rightful settlement of every possible controversy that can arise among men.” It is “the only standard by which any controversy whatever between man and man, can be rightfully settled.” Legislation can have no purpose except to stand athwart of and interfere unjustly with the functioning of natural law. Legislation is, therefore, “self-evidently superfluous, false, absurd, and atrocious.”Footnote ¹³⁶ For Spooner, this natural law is a set of prescriptions, not merely a set of factual regularities of human conduct. Thus, there is nothing puzzling about people acting contrary to the natural law. And sometimes people will act contrary to these norms of natural justice when they perceive such action to be personally advantageous.

Some people will perceive opportunities for advantageous injustice when those around them become productive enough to be attractive targets for plunder. At that point some men

These “bands of robbers” have become specialists in predation, “inventing warlike weapons, disciplining themselves, and perfecting their organizations as military forces.”Footnote ¹³⁸ They establish what they call “governments” and what they call “laws.” The latter are

Presently existing non-slave societies are the result of the robber class having discovered that its interests are better yet served by giving their (now former) slaves “so much liberty as would throw upon themselves … the responsibility of their own subsistence, and yet compel them to sell their labor to the land-holding class.”Footnote ¹⁴⁰ This compulsion is accomplished by illicit governmental action which maintains for the robber class “a monopoly of all lands, and, as far as possible, of all other means of creating wealth.”Footnote ¹⁴¹ All these illicit, rights-violating, monopolies are sustained through legislation—the point of which is always to contravene and overturn the simple and easily perceived natural law. While most acts of legislation are “the impudent, fraudulent, and criminal usurpations of tyrants, robbers, and murderers,” some legislation merely commands men to do justice and, thus, rises to the level of superfluous “idle wind.”Footnote ¹⁴²

Spooner considers and rejects two purported vindications for legislation. It is within the natural rights of individuals to form connections with governments for the purpose of better securing their respective rights; and through such voluntary connections individuals may become bound to pay for governmental services and to cooperate in certain ways with permissible governmental endeavors. However, any degree of deference to governmental authority requires genuine voluntary consent to that authority. And in No Treason, No. 6 Spooner constructs a powerful systematic attack on attempts to identify actual acts of consent that can plausibly be thought to ground either legislative or constitutional authority. I pass by the details of that attack here because it takes Spooner's natural rights framework as given and simply argues that people have not in fact exercised their rights in any of the ways that would create constitutional or legislative authority.Footnote ¹⁴³

In A Letter to Grover Cleveland, Spooner confronts a direct challenge to that rights framework. The challenge is that a fundamentally different morality exists to guide and vindicate governmental actions, namely, the morality of promoting the public good. Spooner might have challenged this alternative morality on two different high theoretical grounds. First, he might have reiterated his stance in “Vices Are Not Crimes” that each individual's happiness is “the great purpose and duty of his life” so that individuals have no duty to submit themselves to personal losses for the sake of greater gains for others. Second, he might have exploited another idea from that same essay: the idea that what constitutes well-being for any given person is likely to differ radically from what constitutes well-being for other persons. Spooner could then have argued, as we have seen Spencer argue from a similar premise, that effects of proposed public policies on the happiness of the diverse individuals who will be impacted by them cannot possibly be known, compared, or aggregated.

Spooner, however, seems to attack the public good proposal on a more practical level—with a quite well-worked out proto-public choice argument. Cleveland's inaugural address proclaims “a government pledged to do equal and exact justice to all men.” But Cleveland envisions this equal and exact justice arising from legislators serving as advocates for various worthy interests and arriving at wise and considered collective judgments about which of these interests should really be advanced, which should be put on hold, and which should be sacrificed. Spooner's argument is that this is hardly a recipe for anything that could be described as the public good; rather, it is a recipe for the selection of legislators for their skill at serving the special interests of their (vocal and well-organized) constituents by means of making nimble deals with other skillfully predatory legislators. Recall here Spencer's claim that to assign government the task of directly promoting the general good is to sanction whatever actions the government chooses to perform. Indeed, according to Spooner, the promotion of the public good is in reality a formula for

Spooner provides a wonderfully vitriolic account of the reality of the state's provision of equal and exact justice to all. It is difficult to select just one further passage from Spooner's analysis of how the invocation of “the general welfare” or “the common interest” calls forth the predatory hounds. But here is one passage that has a nice further twist:

I have described Spooner's critique of guidance by the general welfare or the common good as a practical or proto-public choice criticism. Still Spooner has a theoretical explanation for the radical difference that he perceives between a legal order guided by respect for rights and a state order guided by interests or welfare.

The difference, he holds, is that men's true rights are consistent and harmonious; so, no one's rights have to be sacrificed in order for others' rights to be respected. But, because persons' interests or welfare considerations are open-ended, i.e., because interests or welfare considerations can always be better served, the desired degree of satisfaction of some of those interests or welfare considerations will always compete with the desired degree of satisfaction of other interests or welfare satisfactions. If political decisions are to be made on the basis of competing interests or considerations of welfare, even the most genuinely impartial legislator will have to be in the business of deciding whose interests or welfare is going to be sacrificed to who else's interests or welfare. Then political success will go to the boldest and most rapacious.