Is Herbert Spencer's Law of Equal Freedom a Utilitarian or a

Rights-Based Theory of Justice?

Tim Gray

Journal of the History of Philosophy, Volume 26, Number 2, April 1988, pp.
259-278 (Article)

Published by Johns Hopkins University Press

DOI: https://doi.org/10.1353/hph.1988.0033

For additional information about this article

https://muse.jhu.edu/article/226608/summary

Access provided at 3 Jan 2020 21:31 GMT from University of Toledo

 Is Herbert Spencer's Law of
Equal Freedom a Utilitarian or a
Rights-Based Theory of Justice?
T . S. G R A Y

1. INTRODUCTION
THE RELATIONSHIP b e t w e e n utility a n d rights has l o n g o c c u p i e d writers o n ethics
a n d politics. T h e s e two principles a p p e a r to s u p p l y alternative a n d o p p o s e d
f o u n d a t i o n s f o r political t h e o r y . S o m e utilitarians (such as B e n t h a m ) dismiss
(natural) rights as n o n s e n s e . S o m e rights theorists (such as K a n t a n d Nozick)
dismiss utilitarian c o n s i d e r a t i o n s as o u t s i d e justice. B u t a t t e m p t s have b e e n
m a d e to b r i d g e t h e g u l f a p p a r e n t l y s e p a r a t i n g utility f r o m rights. Utilitarians
such as J. S. Mill h a v e tried to a c c o m m o d a t e the n o t i o n o f rights within the
principle o f utility. ~ A n d Rawls' A Theory of Justice m a y be i n t e r p r e t e d as an
a t t e m p t by a r i g h t s - t h e o r i s t to a c c o m m o d a t e the principle o f utility. H e r b e r t
S p e n c e r , w h o was f a c e d in 185o like Rawls in 197o with a climate o f intellectual
o p i n i o n p r e d o m i n a n t l y utilitarian in c h a r a c t e r , p r o d u c e d a political t h e o r y

I am endebted to Peter Jones and Hillel Steiner for their helpful comments on earlier
versions of this paper. I am grateful to one of the anonymous referees of this journal for pointing
out to me that "Spencer's basing the law of equal freedom on the Moral Sense suits the respect for
the intuitionist Scottish philosophy in Spencer's friendship circle," and for drawing my attention
to Mark Francis's unpublished dissertation, The Origim of the Spencerian Philosophy and the New
Reformation (Cambridge, i 973) where these connections are explored.
The following abbreviations of works by Herbert Spencer are used in this essay:
SS Social Statics (London: John Chapman, 1851).
PE The Principles of Ethics, ~ vols. (London: Williams and Northgate, 1879-93 ).
A Autobiography,2 vols. (London: Williams and Northgate, 19o4).
Essays Essays: Scientific, Political and Speculative, 3 vols. (London: Williams and Northgate, 19ol).
' John Gray has recently described Mill's theory thus: "We may characterise his indirect
utilitarian derivation of basic rights as a rights-based political theory grounded in a goal-based
moral theory." "Indirect Utility and Fundamental Human Rights," in E. F. Paul, F. D. Miller, and
J. Paul, eds., Human Rights (Oxford: Blackwell, 1984), 89.

[259]
260 JOURNAL OF T H E H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
which has been interpreted by some critics such as John Gray as a utilitarian
creed of an indirect kind, in which protection of natural rights is justified as the
surest means to the greatest happiness. Other critics such as Hillel Steiner,
however, have interpreted Spencer's theory as ultimately rights-based, though
one that is often, if vainly, defended by him also on utilitarian grounds.
It will be argued in this paper that Spencer's theory is founded upon a
doctrine of Moral Sense from which intuitions concerning human rights are
applied by reason to yield policy prescriptions striking a balance between
utility and rights. This interpretation differs from that of Gray in that it views
rights as prior to utility, and it differs from Steiner's interpretation in that it
supplies a foundation for rights--a foundation which includes some utilitar-
ian elements.
In what follows I will critically examine the above two interpretations of
Spencer's doctrine (as a utility-based theory and as a rights-based theory re-
spectively) before elaborating my own argument that it is a Moral Sense
theory.

2. TWO ALTERNATIVE B A S E S OF S P E N C E R ' S THEORY

A. A Utility-Based Theory
There is much argumentation in Spencer's Social Statics (185o ) and Principles of
Ethics (1879-1893) which suggests utilitarianism. The full title of the earlier
book is Social Statics: or The Conditions Essential To Human Happiness Specified
and the First of Them Developed. This "first condition" of happiness is the law of
equal freedom (L.E.F.), which for Spencer meansjustice.~ While rejecting the
Benthamite idea that the "greatest happiness should be the immediate aim of
man" (SS 66), Spencer affirms that "the ultimate purpose of creation" is "the
production of the greatest amount of happiness" (SS 41o) and that
" . . . though not the immediate end, the greatest sum of happiness is the
remote end" (PE 2:46). Spencer claims that "greatest happiness is the creative
purpose" and that "Greatest Happiness and Morality are the face and obverse
of the same fact" (SS 66). In his Principles of Ethics, forty years later, Spencer
reiterates this utilitarian credo. The terms 'good' and 'bad' inescapably signify
pleasurable or painful consequences (PE 1:28, 32, 34, 38, 45). The "purpose
of ethical inquiry," infers Spencer, "is to establish rules of right living; a n d . . .
the rules of right living are those of which the total results, individual and
general, direct and indirect, are conducive to human happiness" (PE 1:95).
Spencer then explicitly argues that the L.E.F. is the means to the end of utility.

Further conditions include Negative and Positive Beneficence (self-restraint and self-
sacrifice respectively)and moderate self-interestedness. None of those conditions is a matter of
justice, involvingrights (SS66-69).
 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 261

T h e L.E.F. is "that p r i m a r y condition to greatest happiness" (SS 76) since

"happiness consists in the d u e exercise o f all the faculties" (SS 76) and people
need f r e e d o m in o r d e r to exercise their faculties. Spencer concludes t h e r e f o r e
that: "Liberty o f action being the first essential to exercise o f faculties, and
t h e r e f o r e the first essential to happiness; and the liberty o f each limited by the
like liberty o f all, being the f o r m which this first essential assumes when
applied to m a n y instead o f one, it follows that this liberty o f each, limited by
the like liberty o f all, is the rule in conformity with which society must be
organised" (SS 88).
In Principles of Ethics, A p p e n d i x A, " T h e Kantian Idea o f Rights," Spencer
explicitly contrasts his own teleological justification for the L.E.F. with Kant's
deontological justification for a similar principle o f freedom. Whereas Kant's
conception o f equal liberty is f o u n d e d on p u r e reason, and forms part o f the
metaphysic o f morals, Spencer says o f his own conception o f the L.E.F. that it
is to be " r e g a r d e d as expressing the primary condition which must be fulfilled
before the greatest happiness can be achieved by similar beings living in prox-
imity" (PE 1:438) and "Kant enunciates an a priori requirement, contemplated
as irrespective o f beneficial ends; whereas I have enunciated this a priori
r e q u i r e m e n t as one which, u n d e r the circumstances necessitated by the social
state, must be c o n f o r m e d to for achievement o f beneficial ends" (PE 2:438).3
On the basis o f such evidence, J o h n Gray characterizes Spencer's political
t h o u g h t as "resting on a sort o f indirect utilitarianism," and claims that " H e d o -
nism is, then, at the very f o u n d a t i o n o f Spencer's doctrine o f liberty."4 Gray
quotes the following passage from Spencer's Autobiography as explicit s u p p o r t
for this interpretation:

I have never regarded myself as an anti-utilitarian. My dissent from the doctrine of

Utility as commonly understood concerns not the object to be reached by men, but the
method of reaching it. While I admit that happiness is the ultimate end to be contem-
plated I do not think it should be the proximate end. The Expediency-Philosophy
having concluded that happiness is the thing to be achieved, assumes that morality has
no other business than empirically to generalize the results of conduct, and to supply
for the guidance of conduct nothing more than its empirical generalizations.
But the view for which I contend is, that Morality properly so-called--the science of
right conduct--has for its object to determine how and why certain modes of conduct

3 Henry Sidgwick commented that "Mr. Spencer is quite right as to the fundamental differ-
ence between Kant's doctrine, prescribing Freedom absolutely, and his own doctrine, which
prescribes Freedom as means to general happiness." Sidgwick,Lectures on the Ethics ofT. H. Green,
Mr. Herbert Spencer, andJ. Martineau (New York: Macmillan, 19o2), ~69.
4 j. N. Gray, "Spencer on the Ethics of Liberty and the Limits of State Interference," History
of Political Thought (198~), 3:481,469 .
262 J O U R N A L OF T H E H I S T O R Y OF P H I L O S O P H Y 9 6 : 2 APRIL ~988
are detrimental, and certain others beneficial. The good and bad results cannot be
accidental, but must be necessary consequences of the constitution of things; and I
conceive it to be the business of Moral Science to deduce from the laws of life and the
conditions of existence, what kinds of action necessarily tend to produce happiness,
and what kinds to produce unhappiness. Having done this, its deductions are to be
recognised as laws of conduct; and are to be conformed to irrespective of a direct
estimation of happiness or misery (A 2:88-89).
All this does seem to add up to a very convincing case for interpreting
Spencer as a utilitarian, albeit of an 'indirect' kind rather than a 'direct' k i n d - -
'rational utilitarianism'5 as opposed to 'empirical utilitarianism' as Spencer
himself expressed the distinction (PE 1:57).

B. A Rights-Based Theory
T h e r e is however much evidence in Spencer's writings that supports the alter-
native view that the basis of his L.E.F. lies not in utility but in an i n d e p e n d e n t
conception of rights. This evidence is of both a negative and a positive kind.
First, the negative evidence--Spencer's sustained arguments against utilitari-
anism. T h e remorseless and comprehensive critique of direct or empirical
utilitarianism p r o d u c e d by Spencer at the beginning of Social Statics suggests
far more than merely a difference of opinion between himself and Bentham
as to the most effective mode of promoting the greatest happiness. T h e very
notion of happiness has no definite or determinate meaning: "the standard of
happiness is infinitely variable. For all ages--amongst every people--by each
class--do we find different notions of it e n t e r t a i n e d . . , the standard of'great-
est happiness' possesses as little fixity as the other exponents of h u m a n na-
t u r e . . , not only that every epoch and every people has its peculiar concep-
tions of happiness, but that no two m e n have like conceptions; and f u r t h e r . . .
in each man the conception is not the same at any two periods of life" (SS 3, 4,
5). What, for example, asks Spencer, "is the ratio between the mental and
bodily enjoyments constituting this 'greatest happiness'? T h e r e is a point up to
which increase of mental activity produces increase of happiness; but beyond
which, it produces in the end more pain than pleasure. Where is that point?"
(SS 6). And which "is most truly an element in the desired felicity, content or
aspiration?" For most people, contentment is "the chief essential to well-
being." But others hold that "but for discontent we should still have been
savages." Aspiration is "the greatest incentive to progress" (SS 6). A n d does
felicity mean "the greatest possible enjoyment of this life's pleasures" or "antici-
pating the pleasures of a life to come?" (SS 7).

Or "DeductiveUtilitarianism"as Sidgwicktermed it (Lectures,~78).

 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 263
Spencer concludes that: "Not only therefore is an agreement as to the
meaning of 'greatest happiness' theoretically impossible, but it is also manifest,
that men are at issue upon all topics, which for their determination require
defined notions of it" (SS 7).
Turning next to the question of the application of the greatest happiness
principle, Spencer remarks that even if the meaning of it were determinable,
attempts to attain it would still be doomed to failure.

Even were the fundamental proposition of the expediency system not thus vitiated by
the undefiniteness of its terms, it would still be vulnerable. Granting, for the sake of
argument, that the desideratum, 'greatest happiness', is duly comprehended, its iden-
tity and nature agreed on by all, and the direction in which it lies satisfactorily settled,
there yet remains the unwarranted assumption that it is possible for the self-guided
human judgment to determine, with something like precision, by what methods it may
be achieved. Experience daily proves that just the same uncertainty which exists re-
specting the specific ends to be obtained, exists likewise respecting the right mode of
attaining them when supposed to be known. In their attempts to compass one after
another the several items which go to make up the grand total, 'greatest happiness',
men have been anything but successful: their most promising measures having com-
monly turned out the greatest failures. (SS 8)

Spencer then proceeds to list some of these abortive attempts to achieve the
greatest happiness by direct means, concluding that it is hardly surprising that
the empirical approach has failed, "since it requires nothing less than omni-
science to carry it into practice" (SS ~6).
Clearly Spencer is bitterly opposed to the direct method used by Bentham-
ite, or empirical, utilitarianism. The direct method invariably fails. But the
above passages go deeper than this, and imply that Spencer is actually op-
posed not only to the empirical means of promoting the greatest happiness,
but also to the very idea of the greatest happiness as an end. In saying that
"agreement as to the meaning of 'greatest happiness' is theoretically impossi-
ble"; that "the fundamental proposition of the expediency system" is "vitiated
by the indefiniteness of its terms"; that there is "uncertainty... respecting the
specific ends to be attained," and "likewise respecting the right mode of attain-
ing them when supposed to be known," Spencer is affectively abandoning the
principle of utility itself. If we cannot determine the meaning of happiness, we
cannot determine whether or not conformity to the L.E.F. will maximize
happiness. If it is impossible to calculate how happiness can be directly maxi-
mized, how is it possible to calculate how happiness can be indirectly maxi-
mized? Surely Spencer's scepticism concerning empirical utilitarianism--"to
found thereon a code of rules for the obtainment of 'greatest happiness' is a
264 JOURNAL OF T H E H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
task far beyond the ability of any finite mind" (SS 12-13)--is a scepticism
which undermines all confidence in the demonstrability of the benign effect
of the UE.F? How could there be "uncertainty" about "the right mode" of
attaining the greatest happiness, if the L.E.F. will certainly attain it? The
doctrine of indirect or rational utilitarianism just as much depends upon a
determinate, identifiable and calculable concept of happiness as does the doc-
trine of direct or empirical utilitarianism.
Steiner finds a more explicit rejection of utilitarianism in Spencer's prefer-
ence for the equal liberty principle (E.L.P. as Steiner characterizes it) over the
pain or harm principle.
Either we limit the liberty of each by the like liberty of all, or we limit the liberty of each
by the necessity of not giving pain to the rest. The first errs in allowing some improper
actions, while the second errs in disallowing some proper o n e s . . , though his delibera-
tions remain inconclusive, the upshot is definite enough: he decides that it is categori-
cally worse to disallow proper actions than to allow improper ones. And hence the law
of equal freedom is to be preferred. In the final analysis, then, E.L.P. is treated as a
basic moral axiom which, as in Kant, can be founded neither on social utility nor
general happiness nor the common good. Each individual's entitlement to equal liberty
is of intrinsic, and not instrumental, moral worth. 6

F u r t h e r c o n s i d e r a t i o n s cast d o u b t o n S p e n c e r ' s c o m m i t m e n t to utilitarianism as

the ultimate e n d . F o r e x a m p l e , w h e n e x p l a i n i n g the d u t y we have to o b e y the
L.E.F., he invariably e m p l o y s d e o n t o l o g i c a l r a t h e r t h a n teleological l a n g a u g e .
Typically S p e n c e r r e f e r s to society's n e e d f o r "rectitude in its c o m p o n e n t parts,"
a n d f o r it to be "builit o n upright principles," if it is n o t to "assuredly t u m b l e to
pieces" (SS 42). A n d he u r g e s that " n o m a t t e r h o w seemingly i n e x p e d i e n t ,
d a n g e r o u s , injurious even, m a y be the c o u r s e which morality points o u t as
'abstractedly right', the h i g h e s t w i s d o m is in p e r f e c t a n d fearless submission"
(SS51).
A similar c o n c l u s i o n is s u g g e s t e d by passages in which S p e n c e r invokes the
n o t i o n o f t h e Deity to e x p l a i n o u r d u t y to o b e y t h e m o r a l law.

For what does a man really mean by saying of a thing that it is 'theoretically just' or
'true in principle' or 'abstractedly right'? Simply that it accords with what he, in some
way or other, perceives to be the established arrangements of Divine rule. When he
admits that an act is 'theoretically just', he admits it to be that which, in strict duty,
should be done. By 'true in principle' he means in harmony with the conduct decreed
for us. The course which he calls 'abstractedly right', he believes to be the appointed
way to human happiness. There is no escape. The expressions mean this, or they mean
nothing. Practically, therefore, when he proposes to disobey, he does so in the hope of

6 Hillel Steiner, "Land, Liberty and the Early Herbert Spencer," Historyof PoliticalThought, 3:
593-24 .
 SPENCER'S LAW OF EQUAL FREEDOM 265

improving on this guidance! Though told that such and such are the true
roads to happiness, he opines that he knows shorter ones! To the Creator's
silent command--'Do this'; he replies that, all things considered, he can do
better! This is the real Infidelity; the true Atheism: to doubt the foresight and
efficiency of the Divine arrangements, and with infinite presumption to sup-
pose a human j u d g m e n t less fallible! (SS 49-5 o)
By using terms such as 'the established arrangements of Divine rule'; 'strict
duty'; 'conduct decreed for us'; 'the appointed way to human happiness'; 'told
that such and such are the true roads to happiness', Spencer is identifying the
moral force of the duty to obey the L.E.F., not in the fact of its utility-
maximizing character, but in the fact that it is God's ordained law. We are
obliged to obey the L.E.F. because God commands us to do so, not because we
have a moral obligation to promote utility. Of course God wills human happi-
ness: "God wills man's happiness. Man's happiness can only be produced by
the exercise of his faculties. Then God wills that he should exercise his facul-
ties. But to exercise his faculties he must have liberty to do all that his faculties
naturally impel him to do. Then God intends he should have that liberty.
Therefore he has a right to that liberty" (SS 77). But God's felicitous intentions
are not strictly relevant to our duty to obey His law. The wisdom or prudence
of obeying the L.E.F. is quite separate from its obligatoriness. "The denial of
rights amounts to a libel on the Deity" (SS lo6). Indeed the notion of utility
seems entirely redundant in the above passage, since Spencer is only claiming
that I have a guaranteed God-given right to the liberty to exercise my fac-
ulties--whether or not that brings me happiness is an entirely contingent
matter. If God does not guarantee me happiness--and Spencer is careful to
avoid saying I have a God-given right to happiness and therefore that others
have a moral duty to ensure that I am happy (PE 2:4 ~ ) - t h e n the fact that God
"wills man's happiness" is, strictly speaking, beside the point. All that this
argument indicates that God's will entitles me to, is my liberty, not my happi-
ness. And the same applies to everyone else.
Finally, Spencer's affiliation to the utilitarian creed is considerably weak-
ened by the fragility of some of the arguments he employs to demonstrate that
greatest happiness necessitates equal liberty. For example, he argues that
greatest happiness is only perfectly and completely realizable if people are
confined to equal spheres of liberty.
In this social state the sphere of activity of each individual being limited by the spheres
of activity of individuals, it follows that the men who are to realise this greatest sum of
happiness must be men of whom each can obtain complete happiness within his own
sphere of activity, without diminishing the spheres of activity required for the acquisi-
tion of happiness by others. For manifestly, if each or any of them cannot receive
266 JOURNAL OF THE HISTORY OF PHILOSOPHY 2 6 : 2 APRIL 1 9 8 8

complete happiness without lessening the spheres of activity of one or more of the rest,
he must either make himself come short of complete happiness, or must make one or
more do so; and hence u n d e r such circumstances, the sum total of happiness cannot be
as great as is conceivable, or cannot be greatest happiness. Here then is the first of
these fixed conditions to the obtainment of greatest happiness, necessitated by the
social state. It is the fulfilment of this condition which we express by the word justice.
(ss 83)

But this argument begs the question; instead of demonstrating, it presup-

poses what is to be demonstrated, namely that utility-maximization requires
equal freedom. It entirely ignores the possibility that a more-than-equal free-
dom for some, together with a less-than equal freedom for others, might
conceivably produce greater total happiness than would an equal distribution
of freedom. Spencer here assumes that, despite the immense variation in
human personality which he himself so much stressed earlier, everyone has
the same utility function for freedom. What evidence is there for Spencer's
assertion that for every person in every sphere of activity happiness is directly
proportioned to freedom?
The fact is that Spencer has a fixed and preconceived view of the legiti--
mate sphere of everyone's liberty, and seeks to condition people into wanting
to exercise only those faculties which do not impinge on others' equal liberty.
Significantly, having begun by stating that "Happiness signifies a gratified
state of all the faculties" (SS 5), Spencer concludes by claiming that "happiness
consists in the due exercise of all the faculties" (SS 76). In other words, the
L.E.F. comes first in priority, and happiness maximization is restricted to goals
which lie within its limits. We must pursue the good only within the limits of
the right. The right is prior to the good. Spencer seems to be arguing that
since it is illegitimate to obtain happiness outside one's equal sphere of liberty,
therefore it cannot promote utility to do so.
So much for the negative side of the case for the rights-based interpreta-
tion of Spencer's theory, i.e., the arguments against a utilitarian foundation.
The positive side of the case, i.e., the arguments for an independent rights-
basis, may be stated more briefly. In fact, these 'arguments' are simple asser-
tions or statements. For example, in the course of denying that people have a
right to be remuneratively employed, Spencer implies that genuine rights are
inherent in the human constitution, independent of all social arrangements:
"the word right as here used, bears a signification quite different from its
legitimate one--that it does not here imply something inherent in man, but
something depending upon external circumstances--not something possessed
in virtue of his faculties, but something springing out of his relationship to
others---not something true of him as a solitary individual, but something
which can be true of him only as one of a community--not something anteced-
 SPENCER'S LAW OF EQUAL FREEDOM 267
ent to society, but something necessarily subsequent to it" (SS 313-14). Spen-
cer's earliest known definition of government is "a national institution for
preventing one man from infringing upon the rights of another" (A 1:197 ).
And in Social Statics Spencer describes this goal as an end in itself, not a means
to some other ends: "rights are the be-all and end-all of government; and rank
above it, as the end above the means" (SS 2o5).
In Principles of Ethics, Spencer insists that these rights are moral rights, intrin-
sic to human beings, independent of legal and political institutions. Rejecting
the positivist Benthamite view that "the State is the originator of rights, and that
apart from it there are no rights," Spencer claims that "So far is it from being
true that the warrant for what are properly called rights is derived from law, it
is, conversely, true that law derives its warrant from them" (PE 2:63).
Underlying these statements is the implicit notion that human beings are
moral agents whose integrity and dignity demands that they are respected as
bearers of rights. Spencer claims that "the body of each person i s . . . regarded
as a territory inviolable by any other person" (PE II 7o). Everyone, he says, "in
virtue of their constitutions" (SS 77) as human beings, possesses an equal claim
to exercise these rights.
The clear implication of these various remarks is that Spencer embraces a
rights-based definition of the functions of government which is quite indepen-
dent of utility. The L.E.F. is, he says "an ultimate ethical principle, having an
authority transcending every other" (PE II 61)

3" A P P R A I S A L OF THE TWO INTERPRETATIONS

Neither of the interpretations examined above is entirely satisfactory. John

Gray's thesis of indirect utilitarianism suffers from the serious weakness that it
fails to explain adequately the alleged connection between greatest happiness
and equal liberty. If, as Spencer claims, the notion of the greatest happiness is
conceptually indeterminate, how can he be so confident that the L.E.F. will
promote it?
The answer that Spencer gives to this question is that there is a necessary
connection between the L.E.F. and the greatest happiness. "To overstep such
limitations," says Spencer, "is to disregard these necessities of things--to fight
against the constitution of nature" (SS 465). What Spencer means is that there
is not merely a contingent or empirical link, but a causal link between the
L.E.F. and utility. But as we shall see, this causal link is actually a logical or
conceptual one lying in the interrelated definitions of liberty and of happiness
which Spencer produces.
Spencer defines the greatest happiness (notwithstanding his insistence that
it is indeterminate) in the following terms: "Happiness signifies a gratified state
of all the faculties. The gratification of a faculty is produced by its exercise. To
268 JOURNAL OF T H E H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
be agreeable that exercise must be proportionate to the power of the faculty; if
it is insufficient, discontent arises, and its excess produces weariness. Hence, to
have complete felicity is to have all the faculties exerted in the ratio of their
several developments; and an ideal arrangement of circumstances calculated to
secure this constitutes the standard of'greatest happiness' "(SS 15)-
Such a conceptualization escapes, Spencer evidently thinks, the criticisms
he previously enumerated against other attempts to give the notion of "great-
est happiness" a precise meaning. Perhaps this is because the exercise of
everyone's faculties is a definition which everyone can accept, since it pre-
scribes no particular act or condition or goal. It is a procedural rather than a
substantive definition of happiness, and as such is uncontroversial.
If this/s Spencer's rationale for his own definition of greatest happiness
(he never explicitly defends his definition) it is, of course, fraudulent. Spen-
cer's definition as it stands has no more determinate content than previous
rejected definitions. What is a 'faculty'? How much 'exercise' does it require to
be 'proportionate' to its power? Are some faculties more important to exercise
than others (i.e., more happiness-producing)? Might not some faculties in-
volve pain rather than pleasure when exercised? (Some people argue that
happiness means lack of exercise of faculties--inert peace of mind.)
The connection that Spencer subsequently draws between happiness, as
here conceptualized, and freedom, is attempted on two levels--an inductive
level and a deductive level. On the inductive level, Spencer claims that the
L.E.F. is the condition of future progress towards a more complete adaptation
to the circumstances of life (SS 436) and that only by observing the L.E.F. will
practices and attitudes which currently prevent the attainment of maximum
happiness be gradually superseded (SS 86-87).
This inductive level of argument is quite unsatisfactory. For one thing it is
not so much an argument as a series of assertions: what evidence is there to
support Spencer's claim that present and future progress depend on obedi-
ence to the L.E.F.? For another thing, Spencer himself elsewhere casts doubt
on the connection between liberty and progress. He denies that the L.E.F. was
the key to progress during the earliest stages of civilization (SS lO 5, 41o, 461;
PE 2: 22-23). And there is some doubt as to whether he thinks it possible for
imperfect human beings either at present or in the future to obey the L.E.F. in
its entirety (SS 464-65). "It is an idea appropriate to an ultimate state, and can
be but partially entertained during transitional states" (PE 2:43).
The deductive level of argument seeks to ascertain "the conditions by con-
forming to which this greatest happiness may be attained. Not to put trust in
guesses: not to do this or that, because we think it will be beneficial: but to find
out what really/s the line of conduct that leads to the desired end. For unques-
tionably there must be in the nature of things some definite and fixed pre-
 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 269
requisites to success" (SS 67). But this deductive argument simply reduces to
the assertion of a necessary link between happiness and freedom.
The truth is that Spencer perceives happiness less as the outcome of exer-
cise of faculties, than in terms of the freedom to exercise or not exercise
faculties. It is the opportunity to exercise one's faculties, rather than what
follows from the exercise itself, which to him is the real source of one's happi-
ness. As such, Spencer has simply identified happiness with liberty. His argu-
ment is not, in fact, the teleological one that equal liberty is the best (only)
means to happiness, but the collapse of utility into liberty. Being happy is the
same thing as being free; the concepts of liberty and utility are not causally
related; it is not the case that the one leads to the other; they are definitionally
or conceptually or logically related: the one /s the other. In the notion of
individuality we can see this identification of liberty with utility. Spencer writes
of "the complete manifestation of every one's individuality. To be that which
he naturally is---to do just what he would spontaneously do--is essential to the
full happiness of each, and therefore to the greatest happiness" (SS 434)-
Among the vexed questions that remain, is, how is this composite concept
of individuality to be justified? Whatever answer Spencer gives to this ques-
tion, it cannot without circularity invoke the principle of utility as its justifica-
tion, since the principle of utility is already built into it.7
Let us turn now to the interpretation put forward by Hillel Steiner, that
Spencer enunciates an autonomous rights-based theory, abandoning utilitarian-
ism in the final analysis. While this interpretation is well-founded in some
respects, it is more impressive in its negative task of showing how Spencer's
theory is not utilitarian (see above 262-66), than in its positive task of explain-
ing the nature of the so-called autonomous rights theory (see above 266-77).
Steiner likens Spencer's doctrine to that of Kant, since for both of them equal
liberty is "a basic moral a x i o m . . , founded neither on social utility nor general
happiness, nor the common good. ''s While Kant is content to say of the L.E.F.
that "Reason lays this down as a postulate which is not capable of further proof"
(PE 2:438), it seems to me that Spencer is not content to postulate the L.E.F. as a
purely formal principle, but wishes to substantiate it as a concrete moral rule.
4" S P E N C E R ' S M O R A L SENSE T H E O R Y
What, then, are we to make of Spencer's theory? As between the utilitarian
and the rights-based positions, Spencer seems hopelessly divided. At times he

7 Hillel Steiner has pointed out to me that if Spencer does hold that being happy is the same
thing as being free, such a view squarely faces the difficulty pointed out by me above (266), viz.,
the impossibility of deriving a distributive injunction (equal X) from an aggregative injunction
(maximum X) or vice versa.
s Steiner, "Early Herbert Spencer," 524.
970 J O U R N A L OF T H E H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
seems firmly c o m m i t t e d to the one; at o t h e r times he seems firmly committed
to the other. In my view, Spencer's general a p p r o a c h is best r e p r e s e n t e d
neither as utility-based n o r rights-based, but as a Moral Sense theory in which
due r e g a r d is taken o f the respective claims o f both utility and rights. What
evidence is t h e r e that Spencer adopts such a Moral Sense theory? T h e evi-
dence centers on Spencer's discussion o f the Moral Sense in Social Statics, and
to a lesser extent, in Principles of Ethics. Gray never mentions these discussions,
while Steiner dismisses Spencer's analysis o f the Moral Sense doctrine in Social
Statics, on g r o u n d s that Spencer',s p u r p o s e there was to reject it, not embrace
it. Steiner claims that "we can safely omit discussion o f the m a n n e r in which
Spencer quite effectively disposes o f the 'Moral Sense' theory o f ethical j u d g e -
ment"0 But S p e n c e r only rejects the misuse o f the Moral Sense doctrine (in the
hands o f Shaftesbury and others). Correctly used, the Moral Sense was an
i m p o r t a n t m e d i u m for recognizing ethical truths. Spencer described it as
a f f o r d i n g a "Secondary Derivation o f a First Principle" (SS 9o), the principal
derivation being via the abstract a r g u m e n t f r o m the assumed utilitarian inten-
tions o f the Deity. A n d he presents it as a practical guide to conduct, m u c h
m o r e effective than cerebral considerations:
Having inquired how the Divine Idea, greatest happiness, is to be realised.., let us
now pursue the investigation a step further, and see whether there does not exist in
man himself an impulse to claim that exercise, and an impulse to respect those lim-
its . . . . It would be quite at variance with the general law of our structure, that there
should be nothing to restrain us from the undue exercise of faculties, but abstract
considerations like those set forth in the last c h a p t e r . . , man is ruled by quite other
instrumentalities than intellectual ones. The regulation of his conduct is not left to the
accident of a philosophical inquiry. We may, therefore, expect to find some special
agent by which the distinction between right and wrong exercise of faculties is recog-
nised and responded to. From what he has already gathered, the reader will of course
infer that this agent is that Moral Sense, in whose existence we elsewhere saw good
reason to believe. (SS 9o)
My thesis is that, although in Social Statics Spencer formally presents his
Moral Sense t h e o r y as a justification o f the L.E.F. secondary to that o f Divine
utilitarianism, it is the m o r e i m p o r t a n t and consistent o f the two, and the one
which m o r e faithfully reflects the body o f m a t u r e Spencerian evolutionary
philosophy. Spencer explains the n a t u r e o f the Moral Sense thus: " F r o m an
impulse to behave in the way we call equitable, there will arise a perception that
such behavior is p r o p e r - - a conviction that it is good. This instinct or sentiment,
being gratified by a just action, and distressed by an unjust action, produces in
us an a p p r o b a t i o n o f the one, and a disgust toward the other; and these

9 Ibid., 518.
 S P E N C E R ' S LAW OF EQUAL FREEDOM 271

readily beget beliefs that the one is virtuous, and the other v i c i o u s . . , as the
desire to accumulate property is accompanied by a sense of the value of prop-
erty, so is the desire to act fairly, accompanied by a sense of what is fair" (SS
26).
In this way the Moral Sense provides the basis of a moral code: "Assuming
the existence in man of such a faculty as this for prompting him to right
dealings with his fellows, and assuming that it generates certain intuitions
respecting these dealings, it seems reasonable enough to seek in such intu-
itions the elements of a moral code" (SS 27). Indeed Spencer claims that every
ethical theory must rest upon a Moral Sense basis; " t h e o r i e s . . . if they have
not apriori beliefs as their bases, have no bases at all" (PE 2:57 ). Even Bentham-
ite utilitarianism, despite denying the Moral Sense, ultimately appeals to a
"feeling" or "an innate perception" that "all men have equal claims to happi-
n e s s . . , in other words, that 'his moral sense tells him so'. Whether it rightly
tells him so, need not now be considered. All that demands present notice is
the fact t h a t . . , even the disciples of Bentham have no alternative but to fall
back upon an intuition of this much derided moral sense, for the foundation
of their own system" (SS 2~-23).
Previous attempts by writers such as Shaftesbury and Hutcheson to de-
velop the Moral Sense theory failed because they tried to apply it without the
mediation of reason. (Presumably Benthamite utilitarianism unconsciously
committed the same error.) They have "consulted a true oracle," but they have
"failed to systematise its utterances" (SS 27). "It was not in the oracle to which
they appealed, but in their method of interpretation, that the writers of the
Shaftesbury school erred. Confounding the functions of feeling and reason,
they required a sentiment to do that, which should have been left to the
intellect. They were right in believing that there exists some governing instinct
generating in us an approval of certain actions we call good, and a repugnance
to certain others we call bad. But they were not right in assuming such instinct
to be capable of intuitively solving every ethical problem submitted to it. To
suppose this, was to suppose that moral sense could supply the place of logic"
(SS 28-29).
The poin t is that "it is the office of the moral sense to originate a moral
axiom, from which reason may develope a systematic morality" (SS 3o). In
other words, the Moral Sense supplies the basic raw, and often conflicting,
intuitions which reason then evaluates and applies.
This function of reasoning in applying the intuitions of the Moral Sense is
spelled out in more detail by Spencer in Principles of Ethics. After analogizing
the ethical intuitions to mathematical, intuitions, Spencer says: "these ethical
intuitions, far more than the mathematical intuitions, have to be subjected to
methodic criticism. Even the judgements of immediate perception respecting
972 J O U R N A L OF THE H I S T O R Y OF P H I L O S O P H Y 26:9 A P R I L 1 9 8 8
straight lines, curves, angles, and so forth, have to be tested in ways devised by
conscious reason . . . . Evidently, then, the relatively vague internal percep-
tions which men have of right human relations, are not to be accepted without
deliberate comparisons, rigorous cross-examinations, and careful testings of
all kinds: a conclusion made obvious by the numerous minor disagreements
which accompany the major agreement" (PE 2:56).
But how does Spencer's Moral Sense doctrine accommodate the claims of
both utility and rights, as I have claimed it does? It incorporates the claim of
human rights in its most important intuitions. "From it, as from a root, spring
our aspirations after social rectitude: it blossoms in such expressions as--'Do
as you would be done by', 'Honesty is the best policy', 'Justice before generos-
ity', and its fruits are Equity, Freedom, Safety" (SS 24). The UE.F. is "that
fundamental truth of which the moral sense is to give an intuition, and which
the intellect is to develop into a scientific morality" (SS 9o-91). Men, says
Spencer, "perpetually exhibit a tendency to assert the equality of human
rights. In all ages, but more especially in later ones, has this tendency been
visible" (SS 91). From the Magna Carta to the American Declaration of Inde-
pendence and the Anti-Corn Law League this persistent and ingrained notion
of equal rights is expressed. Moreover: "The sayings and doings of daily life
continually imply some intuitive belief of this kind. We take for granted its
universality, when we appeal to men's sense of justice. In moments of irrita-
tion it shows itself in such expressions as--'How would you like it?', 'What is
that to you?', 'I've as good a right as you', etc . . . . indeed, so spontaneous is
this faith in the equality of human rights that our very language embodies it.
Equity and equal are from the same root; and equity literally means equalness"
(SS 92). And such a belief, says Spencer, is daily growing in strength. He
claims that "a conviction of the equality of human rights is now stronger and
more general than ever" (SS 92), indicating both that life is becoming more
and more civilized and that there is nothing accidental or contingent about
our intuitive belief in the L.E.F. On the contrary such a persistent and grow-
ing belief reflects a necessary feature of the human condition. "Not without
meaning is the continued life and growth of this conviction. He must indeed
have a strange way of interpreting social phenomena, who can believe that the
re-appearance of it, with ever-increasing frequency, in laws, books, agitations,
revolutions, means n o t h i n g . . , when we find that a belief like this in the equal
freedom of all men, is not only permanent, but daily gaining ground, we have
good reason to conclude that it corresponds to some essential element of our
moral constitution" (SS 92-93).
The fact that this intuition of the Moral Sense is persistent and growing is
in stark contrast to the limited reception of the principle of utility: "No one of
these [utilitarian] intuitions is justified by so wide a consensus as the intuition
 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 273
[of the L . E . F . ] . . . since Roman times, there has continued to be this contrast
between the narrow recognition of happiness as an end, and the wide recogni-
tion of natural equity as an end" (PE 2:6o). Spencer fully admits that "there
have been, and are, men impervious to this first principle" (SS lO3). But he
denies that this undermines the intuition of the L.E.F.: "the confession that
the truth of this first principle is not self-evident to all, by no means invalidates
it" (SS lO4). Just as in other spheres of knowledge, truths remain truths even
when some people ignorantly deny them, so moral truths remain valid despite
being denied in some quarters. "The Bushmen can only count as high as
three; yet arithmetic is a fact . . . . As, then, the disability of the savage to
perceive the elementary truths of number is no argument against their exis-
tence, and no obstacle to their discovery and developments, so, the circum-
stance that some do not see the law of equal freedom to be an elementary
truth of ethics, does not prevent its being one" (SS lO4). Only at comparatively
later stages of the evolutionary development of society can we expect a wide-
spread acceptance of the L.E.F. (SS 1o5).
The evolutionary dimension of the doctrine of the Moral Sense is deep-
ened in Spencer's later writings when he confirms that the authority of the
L.E.F. rests upon its congruence with a priori intuitions which have gradually
evolved in the modern consciousness. Where do we get our intuitions? He asks
rhetorically: "Whence came a pr/0r/beliefs--how happen they to arise? I do
not of course refer to beliefs peculiar to particular persons, which may be
results of intellectual perversions. I refer to those which are general, if not
universal--beliefs which all, or nearly all, do not profess to base on evidence,
and yet which they hold to be certain" (PE 2: 54-55). He answers: "the intu-
itions of axiomatic truths are regarded by me as latent in the inherited brain,
just as bodily reflex actions are latent in the inherited nervous systems of a
lower o r d e r . . , thus, axiomatic truths, having a warrant a posteriori for the
race, have for the individual a warrant which, substantially a pr/0r/, is made
complete a posteriori" (Essays ~: 287-88 ).
And this brings us to the stage of identifying the utilitarian ingredients in
Spencer's conception of the Moral Sense. The intuitions of the Moral Sense
are embodiments of perceptions of utility distilled through many generations
of minds. "There have been, and still are, developing in the race, certain
fundamental moral intuitions; a n d . . , though these moral intuitions are the
results of accumulated experiences of utility, gradually organised and inher-
ited, they have come to be quite independent of conscious e x p e r i e n c e . . , the
experiences of utility organised and consolidated through all past generations
of the human race, have been producing corresponding nervous modifica-
tions, which, by continued transmission and accumulation, have become in us
certain faculties of moral intuition---certain emotions responding to right and
974 JOURNAL OF T H E H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
wrong conduct, which have no apparent basis in the individual experiences of
utility" (PE 1: 1~3). That this is not an accidental or fortuitous process, Spen-
cer makes clear. "Upright conduct in each being necessary to the happiness of
all, there exists in us an impulse towards such c o n d u c t . . , in other w o r d s . . .
we possess a 'Moral Sense', the duty of which is to dictate rectitude in our
transactions with each other; which receives gratification from honest and fair
dealing; and which gives birth to the sentiment of justice" (SS 2o).
These considerations do not, however, collapse the doctrine of the Moral
Sense into the doctrine of utilitarianism, direct or indirect. Our Moral Sense
tells us what our rights and duties are: utilitarian considerations help firstly to
explain how we come to have such intuitions--why these are the intuitions of
our Moral Sense--and secondly to reinforce our resolve to follow them.

5" T W O PRACTICAL POLICY AREAS IN WHICH SPENCER APPLIES HIS

MORAL SENSE THEORY

The remaining utilitarian and right-based elements in Spencer's doctrine of

the Moral Sense can be seen in the application of its intuitions to two practical
policy issues: the land question and female suffrage. In each case there is an
interplay between the principle of rights (equity) and the principle of utility,
and it is the function of reason to strike the correct balance in applying the
intuitions of the Moral Sense.
At first sight the application of the Moral Sense's intuition of the L.E.F.
appears straightforward. "The process by which we may develop this first
principle into a system of equity is sufficiently obvious . . . . We shall have to
consider of every deed, whether, in committing it, a man does, or does not,
trespass upon the ordained freedom of his neighbour--whether, when placed
side by side, the shares of liberty the two parties respectively assume are equal"
(SS 1 lO). But Spencer recognizes that this is easier said than done, since
"Difficulties may now and then occur in the performance of this process. We
shall, perhaps, occasionally find ourselves unable to decide whether a given
action does or does not trespass against the law of equal freedom" (SS ~~o).
Such a difficulty is illustrated firstly by the issue of the right to land. Spencer
confidently declared in Social Statics that the L.E.F. prescribed that no one had a
right to exclusive ownership or private property in land: "no o n e . . , may use
the earth in such a way as to prevent the rest from similarly using it; seeing that
to do this is to assume greater freedom than the rest, and consequently to break
the law. Equity, therefore, does not permit property in land" (SS 114)- I f private
ownership of land is allowed, said Spencer, then eventually the whole of the
earth will be privately owned, and people who have no land rights will be
entirely deprived of their rights to exercise their faculties: "For men who can-
not 'live and move and have their being' without the leave of others, cannot be
 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 275
equally free with those others" (SS 15). Now Spencer concedes that there are
enormous practical problems connected with the abolition of existing land
ownership rights, especially concerning the question of compensation to exist-
ing owners (SS 123-24). And he acknowledges also that while the Moral Sense
generally endorses the L.E.F., contemporary public opinion draws short of
applying it rigorously in the present case. "Our civilization is only partial" (SS
124). But he insists nevertheless that we must not shrink from the conclusions of
the Moral Sense, observing that "It may by-and-by be perceived, that Equity
utters dictates to which we have not yet listened" (SS 124).
Spencer's well-known volte-face on the land question is set out in Principles
of Ethics. There Spencer notes that while "it appears to be a corollary from the
law of equal freedom, interpreted with strictness, that the Earth's surface may
not be appropriated absolutely by individuals" (PE 2:81), in fact the issue is
more complicated than that, since other intuitions of the Moral Sense must
also be taken into account. Abstractedly considered, i.e., assuming virgin land
unowned by anyone, the Moral Sense would certainly proscribe any property
of rights in land. But "long-standing appropriation, continued culture, as well
as sales and purchases, have complicated matters" (PE 2: 85), and it would be
grossly unjust to existing landowners to deprive them of their land without
giving them compensation virtually equivalent to its market value---and pre-
sumably this would be out of the question (PE 2: 444).
What had changed Spencer's mind was the fact that on further reflection,
he had recognized that the rate of legitimate compensation to existing land
owners was much higher than he had originally (apparently) conceived, and
this rendered the whole proposal abortive. One deduction from the L.E.F. (that
everyone has an equal right to land) was virtually cancelled out by another
deduction from the L.E.F. (that property acquired by enhancing the value of
land without trespassing on others' equal spheres of freedom cannot be confis-
cated without full compensation). In an Appendix on the Land Question, Spen-
cer adds the point that while, no doubt, many land holdings in the past were
acquired by force, i.e. in violation of the L.E.F., it is not equitable to attempt to
rectify that past wrongdoing by confiscating present holdings (PE 2: 440).
It is naive to assume that "those who now own lands are the posterity of the
usurpers, and that those who now have no lands are the posterity of those
whose lands were usurped" (PE 2:44 t). Moreover, we must also take account
of the 'compensation' already paid out from landed estates to "the poorer
members of the landless class during three centuries" in terms of Poor Law
relief (which Spencer estimates at s PE 2: 44S). ~~ Finally, Spencer al-

~o Henry Sidgwickremarked that this is like taking into account the "moneyspent by slave-
owners in keeping slavesalivewhom they might have killed" (Lectures,u88).
276 JOURNAL OF THE HISTORY OF P H I L O S O P H Y 26:9 APRIL 1988
ludes to the practical consequence that land nationalization would inevitably
generate a huge increase of state bureaucracy. Even if it were possible to
rectify all past iniquity, and: "to make a re-arrangement equitable in the
abstract, the resulting state of things would be a less desirable one than the
p r e s e n t . . , it suffices to r e m e m b e r the inferiority of public administration to
private administration, to see that ownership by the State would work ill . . . .
T h e vices of officialism would inevitably entail immense evils" (PE 2: 444).
On f u r t h e r reflection, then, new considerations of both equity and utility
led Spencer to alter his assessment of the way in which the L.E.F. applies to the
question of the land-ownership.
A similar explanation is available for Spencer's change of mind on the
suffrage issue. In Social Statics Spencer argued that universal m a n h o o d suf-
frage was a direct and ineluctable deduction from the L.E.F. " O f the several
conclusions deducible from the law of equal freedom there are few more
manifest or more generally agreed to than this, that all members of a commu-
nity have like claims to political power. I f every man has freedom to do all that
he will, provided he infringes not the equal freedom of any other man, then
each is free to exercise the same authority in legislation as his fellows; and no
individual or class can exercise greater authority than the rest without violat-
ing the law" (SS 217). T h a t women possess rights equal to those of men,
Spencer also makes crystal clear: "Equity knows no difference of sex. In its
vocabulary the word man must be understood in a generic, and not in a
specific sense. T h e law of equal freedom manifestly applies to the whole
race--female as well as male. T h e same a pr/0r/reasoning which establishes
that law for men, may be used with equal cogency on behalf of women. T h e
Moral Sense, by virtue of which the masculine mind responds to that law,
exists in the feminine mind as well. Hence the several rights deducible from
that law must appertain equally to both sexes" (SS 155 ). And that this includes
equal political rights for women Spencer is quite explicit (SS 169).
However, in Principles of Ethics, Spencer qualifies these views. He there
argues that political rights are not directly deducible from the L.E.F., since the
vote is not in itself a necessary part of one's sphere of freedom to pursue the
objects of life. " T h e giving o f a vote, considered in itself, in no way furthers the
voter's life, as does the exercise of those various liberties we properly call rights.
All we can say is that the possession of the franchise by each citizen gives the
citizens in general powers of checking trespasses upon their rights: powers
which they may or may not use to good purpose" (PE 2: 177). In other words the
vote is a means, not an end in itself. It (at best) promotes liberty; it is not a part o f
liberty. Hence, it cannot be a right. W h e t h e r or not a person should have the
vote depends therefore on a reasoned j u d g m e n t as to whether or not their use
of it will promote the protection of other, real, rights.
 S P E N C E R ' S LAW OF E Q U A L F R E E D O M 277
In the particular case of women's suffrage, Spencer argues (oddly) that
since the military and naval liabilities of women are less than those of men,
they are not entitled to equal political rights with men. The argument has thus
shifted from the vote as an instrument, to the vote as a reward for risk. But
whether the vote is regarded either as instrument or reward, it is clearly
distinguished from Spencer's earlier view of the vote as an unconditional
right. All three characterizations are intuitively appealing: the role of reason is
to choose between them in the light of circumstances now prevailing. Spencer
evidently feared illiberal majoritarianism more vividly in 1890 than he had in
185o. Since reflection in the light of experience is able to rework conclusions
which seemed to follow from the fundamental intuition of the Moral Sense, it
is clear once again that for Spencer, the L.E.F. is not a fixed or unambiguous
guide for social policy, but a basic intuition of the Moral Sense that requires
for its application continuous rational appraisal.

6. CONCLUSION
I have argued that Spencer's L.E.F. is not simply a means to the end of utility
(Gray), nor an independent self-justifying axiom (Steiner), but an intuition of
the Moral Sense (that is the basis of its authority) which is applied by reason
for the purpose of making practical policy judgments which judiciously bal-
ance the claims of utility and rights. But even if this is a correct interpretation
of Spencer's theory, the question remains: does it work? Does the Moral Sense
approach employed by Spencer succeed where the utility (Gray) and rights
(Steiner) interpretations failed in explaining the relationship between utility
and rights?
It is certainly an ingenious attempt on Spencer's part to synthesize the two
sets of urgent moral demands. Its value lies in the fact that it locates rights in
the context of utility without reducing them to mere "appendage rights. '''~
Rights are explained and justified as arising in the Moral Sense as intuitions
acquired through long generational experience which necessarily embodies
perceptions of their utility. And they are evaluated and applied by reason,
taking explicit account of both their equity and their utility. As such, a superfi-
cially attractive blend of the concepts of utility and rights has been produced.
However, some difficulties remain. For one thing, how are we to be confi-
dent that rational deliberation will do the work that Spencer requires of it? For
instance, in cases where reason decides between intuitive principles at least
partly on utilitarian grounds (as in the land question) how can it do so, given
Spencer's emphatic rejection of any attempt to directly estimate utility?
For another thing, does the Moral Sense approach really protect rights from

" See R. G. Frey, ed., Utility and Rights (Oxford: Oxford UniversityPress, 1985).
278 J O U R N A L OF THE H I S T O R Y OF P H I L O S O P H Y 26:2 APRIL 1988
being reduced to appendages of utility? If universal rights of access to the
land, and of voting, could subsequently be shown by reasoning to be ill-
founded deductions from the L.E.F., what security is there for any other
rights? If, however, Spencer had made the rights which were derivative from
the intuitive principles of the Moral Sense, completely secure, i.e., so deeply
embedded in our minds as to be impervious to the deliberations of reason,
then there would seem to be little point in the faculty of reason: the Moral
Sense could be applied (as Shaftesbury and Hutcheson thought) without delib-
eration.
Paradoxically, however, these difficulties may reveal the strength rather
than the weakness of Spencer's position. They show both that Spencer may be
willing to modify his resistance to any attempt to calculate utility, and that his
conception of rights is less doctrinaire than it seems at first sight. As a result,
Spencer's reconciliation of the Good (utility) with the Right (individual rights)
appears to be more, rather than less, convincing.

University of Newcastle upon Tyne