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Herbert Spencer (1820-1903)

A British philosopher and sociologist, Herbert Spencer was a major figure in the intellectual life of the Victorian era. He was born in Derby, England, and was a product of an undisciplined and largely informal education, strongly influenced by his family’s antiestablishment and anticlerical views, which are reflected in his writings.

Contrary to the doctrines of natural law, Spencer provided the philosophical underpinnings for the theory of unregulated competition in the economic sphere. Strongly influenced by Charles Darwin, Spencer drew a picture of the evolution of civilization and law in which natural selection and the survival of the fittest are the primary determining factors. Evolution for Spencer consisted of growing differentiation, individuation, and increasing division of labor. He identified two main stages in the development of civilizations: a traditional or military form of society, with war, compulsion, and status as regulatory mechanisms, and a higher or industrial form of society, with peace, freedom, and a contract as the controlling devices.

Spencer was convinced that, in the second stage, human progress will be marked by a continual increase in individual liberty and a corresponding decrease in governmental activities. Government, he believed, would gradually confine its field of action to the enforcement of contracts and the protection of personal safety. He strongly opposed public education, public hospitals, public communications, and any governmental programs designed to alleviate the plight of the economically weaker groups in society. He was convinced that social legislation of this type was an unwarranted interference with the laws of natural selection (Spencer, 1899).

Spencer’s ideas on law influenced a number of early sociologists in the United States (McCann, 2004). For example, William Graham Sumner advocated a position essentially similar to that of Spencer. He, too, saw the function of the state limited to that of an overseer who guards the safety of private property and sees to it that the peace is not breached. He favored a regime of contract in which social relations are regulated primarily by mutual agreements, not by government-imposed legal norms. Sumner also argued that law should promote maximum freedom of individual action. Like Spencer, he considered attempts to achieve a greater social and economic equality among men ill-advised and unnatural:

Let it be understood that we cannot go outside of this alternative: liberty, inequality, survival of the fittest; not liberty, equality, survival of the unfittest. The former carries society forward and favors all its best members; the latter carries society downward and favors all its worst members.

(Sumner, 1940:25)

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