The main purpose of this essay is to articulate the ideas of the last powerful advocate of natural rights in nineteenth-century America. That last powerful advocate was the Massachusetts-born radical libertarian Lysander Spooner (1808-1887). Besides his powerful antebellum attacks on slavery, Spooner developed forceful arguments on behalf of a strongly individualistic conception of natural law and private property rights and against coercive moralism, coercive paternalism, and state authority and legislation. This essay focuses on the theoretical core of Spooner’s position which is his doctrine of natural rights—a doctrine that is primarily developed in Spooner’s The Law of Intellectual Property (1855), Natural Law (1882), and A Letter to Grover Cleveland (1886). I situate Spooner within the libertarian tradition in political thought by beginning this essay with an examination of two English writers whose radical writings (for the most part) preceded Spooner’s—Thomas Hodgskin (1787-1869) and the early Herbert Spencer (1820-1903). I emphasis the strongly Lockean character of Spooner’s thought and support this contention in part by showing how much more Lockean Spooner was than either Hodgskin or the early Spencer.
1 For all of these works except the essay “Vices are not Crimes,” see The Collected Works of Lysander Spooner, ed. Shivley, Charles (Weston, MA: M&S Press, 1971). The wonderful full title of the open letter to Cleveland is A Letter to Grover Cleveland, on His False Inaugural Address, The Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People. “For Vices are not Crimes” see The Lysander Spooner Reader, ed. Smith, George (San Francisco: Fox & Wilkes, 1992). The best general survey of Spooner's life and work is still the chapter on Spooner (entitled “Dissident Among Dissidents”) in Martin, James, Men against the State (Colorado Springs: Ralph Myles Publisher, 1970).
2 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 335. The best general survey of Tucker's life and work remains the two chapters on Tucker in Martin's Men against the State.
3 On Spooner's constitutional thought, see Barnett, Randy, “Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation” Pacific Law Journal 28 (1997): 977, and Knowles, Helen, “Securing ‘The Blessings of Liberty’ for All,” NYU Journal of Law and Liberty 34 (June 2010). Also see Roderick Long, “Inside and Outside Spooner's Natural Law Jurisprudence”—available at: http://praxeology.net/Spooner-OB.doc and discussed below.
4 Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), especially chapters 2–5 of the Second Treatise.
5 Despite many striking similarities between Hodgskin and Spooner, Hodgskin is never mentioned by Spooner. Spencer is also never mentioned although Spooner certainly had some acquaintance with Spencer's views. Indeed, Locke is mentioned—fairly incidentally—only three times in The Collected Works of Lysander Spooner. Locke is not mentioned at all in Spooner's The Law of Intellectual Property despite passages that closely track arguments from The Two Treatises of Government (see notes 127 and 128) or in Spooner's “Vices are not Crimes” even though this essay reads like an updating of Locke, 's A Letter Concerning Toleration, ed. Tully, James (Indianapolis: Hackett Publishing, 1983). One cannot seek out influences on Spooner's thought through an examination of his citations.
6 Lochner v. New York, 198 U.S. 75 (1905). Part of the confusion is that Holmes goes on to refer to Spencer's moral-philosophical doctrine as “a particular economic theory.”
7 Bernstein, David, Rehabilitating Lochner (Chicago: University of Chicago Press, 2011). Barnett, Randyalso describes Cooley and Tiedeman as Lockeans and strongly suggests that they advanced a Lockean conception of natural rights. SeeBarnett's Restoring the Lost Constitution (Princeton: Princeton University Press, 2004), 323–31.
8 Cooley, Thomas M., A Treatise on Constitutional Limitations (Boston: Little Brown, 1868).
9 Tiedeman, Christopher G., The Unwritten Constitution of the United States (New York: G.P. Putnam's Sons, 1890).
10 Ibid., 73.
11 Ibid., 71.
12 Ibid., 81.
13 Ibid., 70–1.
14 Ibid., 70. The last judicial manifestations of nineteenth-century natural rights thinking were the early-twentieth-century U.S. Supreme Court decisions that struck down state government prohibitions of foreign language education and even of all private education. These decisions invoked the natural rights of parents to determine the character of their children's education. Thus, it is very notable that in 1890 Tiedeman had already rejected this approach. Tiedeman took this “supposed natural right” of parents to be disappearing from our evolving morality. “We are … on the eve of witnessing the abrogation of the supposed natural right of the parent to control the actions of his minor child, and to educate it spiritually and intellectually as he should see fit.” (75) Instead, morality and judicial opinion are coming to treat “this control of the child as a trust, reposed by the State in the parent for the benefit of the child, and that whenever the State should determine that the trust is not being properly executed, or that the public interests or the interests of the child require the execution of the trust by the State itself, there is no limit to the power of that State to interfere with the parental control.” (75)
15 See Stack, David, Nature and Artifice: The Life and Thought of Thomas Hodgskin (London: Royal Historical Society, 1997).
16 Hodgskin, Thomas, The Natural and Artificial Right of Property Contrasted (London: B. Steil, 1832). Citations by chapter and page are to the online version of this work available at the Online Library of Liberty, http://oll.libertyfund.org/.
17 Hodgskin offers no citation to Bentham. Bentham's vehement rejection of natural rights and insistence that all rights are creatures of state legislation appears in his “A Fragment on Government” and his “Anarchical Fallacies.” See respectively vol. 1 and vol. 2 of The Works of Jeremy Bentham, ed. Bowring, John (Edinburgh: William Tait, 1838–1843), available online at http://oll.libertyfund.org.
18 The Natural and Artificial Right of Property Contrasted, chaps. 2, 4.
19 Ibid., chaps. 2, 8.
20 Ibid., chaps. 2, 5.
21 Ibid., chap. 2.
22 Thomas Hodgskin, “Peace, Law, and Order,” a lecture delivered in the Hall of the National Association, London, September 29, 1842 available at http://praxeology.net/TH-PLO.htm, 8.
23 Ibid., 8.
24 For this aspect of Locke's thought, see Mack, Eric, John Locke (London: Continuum Publishing, 2009), chap. 2.
25 The Natural and Artificial Right of Property Contrasted, chaps. 2, 3.
26 Ibid., chaps. 2, 4, emphasis added.
27 Ibid., chaps. 2, 6.
28 “Peace, Law, and Order,” 13.
29 Ibid., 11.
30 The Natural and Artificial Right of Property Contrasted, chaps. 3, 6. Hodgskin twice quotes Locke's limitation of rightfully held land to that which that man “tills, plants, and improves, cultivates, and can use, the product of …” However, Hodgskin ignores Locke's explanation of how the introduction of money circumvents this limitation.
31 Would occupancy and cultivation by one's hired labor suffice to sustain one's right to the land?
32 From this premise, a narrow understanding of “labor,” and some primitive economics Hodgskin derives his “socialist” conclusion that all rental income, interest, and profit is illicit. Since the illicit is unnatural, all these forms of income must derive from that which is supremely artificial, viz., legislation.
33 The Natural and Artificial Right of Property Contrasted, chaps. 3, 6.
34 “Peace, Law, and Order,” 6.
35 The Natural and Artificial Right of Property Contrasted, chaps. 2, 6.
36 “Peace, Law, and Order,” 9.
37 Ibid., 10.
38 Ibid., 9.
39 Ibid., 11.
40 The Natural and Artificial Right of Property Contrasted, chaps. 3, 10.
41 Hayek, F. A., Law, Legislation, and Liberty, vol. 1, (Chicago: University of Chicago Press, 1973), 45.
42 “Peace, Law, and Order,” 16.
43 The Natural and Artificial Right of Property Contrasted, chaps. 2, 3.
44 Ibid., chaps. 2, 7.
45 Ibid., chaps. 3, 4.
46 “Peace, Law, and Order,” 14.
47 Ibid., 13.
48 Ibid., 15.
49 The Natural and Artificial Right of Property Contrasted, chaps. 3, 10.
50 Spencer, Herbert, Social Statics, (New York: Robert Schalenbach Foundation, 1970).
51 Spencer has been the object of a great deal of inaccurate interpretation and unfair criticism. Two noteworthy exceptions to this pattern are Taylor, Michael, Men versus the State: Herbert Spencer and Late Victorian Individualism (Oxford: Oxford University Press, 1992) and Weinstein, David, Equal Freedom and Utility: Herbert Spencer's Liberal Utilitarianism (Cambridge: Cambridge University Press, 1998).
52 The Proper Sphere of Government, reprinted in Spencer, Herbert, Man versus the State and Other Essays, ed. Mack, Eric (Indianapolis: Liberty Classics, 1981), 181–263.
53 The Proper Sphere of Government, 187–90.
54 Ibid., 185.
55 Ibid., 185.
56 Ibid., 185.
57 Ibid., 186–87.
58 Ibid., 187.
59 Ibid., 185.
60 Ibid., 207.
61 It is the false expectation that legislation will override the underlying factual regularities of human action that explains much of the unintended negative consequences of legislation.
62 The Proper Sphere of Government, 208.
63 Ibid., 208.
64 Ibid., 187.
65 Ibid., 201.
66 Ibid., 208–9. But if ultimately the issue is one of general expediency, why not hold (as Bentham did) that small losses in sowing due to a general policy of transferring some small percentage of their product from the sowers to those in dire straits will be worth the gain in utility bestowed on those in dire straits? If general expediency ultimately does the work, the purported right of the producer will have no independent moral force against the argument that such a policy of modest transfers would be just—precisely because of the policy's (purported) general expediency.
67 The Proper Sphere of Government, 202.
68 Ibid., 202.
69 Ibid., 209.
70 Social Statics, 66.
71 Social Statics, 6.
72 Ibid., 62.
73 Ibid., 68–69.
74 Ibid., 69.
75 Ibid., 100.
76 Herbert Spencer, “The Great Political Superstition” reprinted in The Man Versus the State and Other Essays, 123–66.
77 “The Great Political Superstition,” 150.
78 Ibid., 153.
79 Social Statics, 104.
80 Ibid., 107.
81 Ibid., 107.
82 Ibid., 117.
83 Ibid., 116.
84 Spencer, Herbert, The Principles of Ethics (1897), ed. Machan, T. R., (Indianapolis: Liberty Classics, 1981), 107.
85 Ibid., 459.
86 For an excellent overall survey of this school of thought including the views of Warren, see Martin's Men Against the State.
87 Liberty was published in Boston from 1881–1908 albeit less and less regularly. It is available online at the very useful website Travelling in Liberty, http://travellinginliberty.blogspot.com/.
88 Spooner, Lysander, No Treason, No. 1, (1867) in The Collected Works of Lysander Spooner, vol. I, iii–iv.
89 Natural Law and A Letter to Grover Cleveland in The Collected Works of Lysander Spooner, vol. I.
90 Natural Law, 5–6.
91 Ibid., 5. See also A Letter to Grover Cleveland, 4. “This science of justice, or natural law, is the only science that tells us what are, and what are not, each man's natural, inherent, inalienable, individual rights, as against any and all other men.”
92 Natural Law, 5.
93 I take Spooner's claim that the science of justice identifies the conditions under which “mankind can live in peace, or ought to live in peace” [emphasis added] to indicate that for Spooner the term “peace” is normatively loaded. It is not simply any old peace that we ought to live in. We ought not to live in the peace of a tyrannical regime even if it is so well entrenched that it never has to carry out violent acts against its subjects. It is not simply any old peace that counts as the peace the conditions of which Spooner seeks to elucidate.
94 Natural Law, 6.
95 Ibid., 8.
96 Ibid., 9. Recall Hodgskin's claim that such rights are known to “children long before they ever hear of law [i.e., legislation].” The Natural and Artificial Right of Property Contrasted, chaps. 2, 8.
97 “Vices are not Crimes,” 33.
98 A Letter to Grover Cleveland, 22.
99 Natural Law, 8.
100 A Letter to Grover Cleveland, 21.
101 Natural Law, 11.
102 Ibid., 14.
103 Ibid., 13.
104 Ibid., 13.
105 Ibid., 12.
106 Ibid., 9.
107 For one thing, Spooner insists that this process yields an affirmation of equal rights; however, a contractarian adjustment of claims need not result in the various parties being assigned equal rights.
108 If any man asserts the moral necessity of his possession of a certain right, he must acknowledge that everyone else's like right is “equally necessary” because “every other man's rights are as good as his own.” “No Treason, No. 1,” 11.
109 Natural Law, 14.
110 A Letter to Grover Cleveland, 21.
111 Ibid., 7.
112 Ibid., 24.
113 Natural Law, 9.
114 A Letter to Grover Cleveland, 8. Spooner adds, “Or if any one should ever chance to need anything more than this, he may safely trust to the voluntary kindness of his fellow men to supply it.”
115 Ibid., 15.
116 “Vices and Not Crimes,” 25–26.
117 Ibid., 28.
118 Ibid., 27. The epistemic dimension of Spooner's argument will bring to mind Mill's argument in On Liberty. However, Spooner's argument actually more closely tracks Locke's argument in A Letter Concerning Toleration.
119 “Vices are Not Crimes,” 25.
120 A Letter to Grover Cleveland, 31–32.
121 The Law of Intellectual Property, The Collected Works of Lysander Spooner, vol. III.
122 Ibid., 21–3.
123 Ibid., 21.
124 Ibid., 22.
125 Ibid., 23.
126 Ibid., 22.
127 Ibid., 80.
128 See, e.g., “Property under Anarchism,” in Tucker, Benjamin, Individual Liberty (New York: Vanguard, 1926).
129 The Law of Intellectual Property, 25.
130 Ibid., 22.
131 Ibid., 28. Compare this with sections 86–88 of Locke's First Treatise of Government.
132 Ibid., 25. Compare this with section 28 of Locke's Second Treatise of Government.
133 A Letter to Grover Cleveland, 34.
134 The Law of Intellectual Property, 24.
135 Ibid., 29.
136 Natural Law, 16. For Spooner this is an overstatement. For surely there are controversies about virtue and vice, about what he calls “moral” duties, that are beyond the ambit of the science of justice.
137 Ibid., 16–17.
138 Ibid., 17.
139 Ibid., 17.
140 Ibid., 18.
141 Ibid., 19.
142 A Letter to Grover Cleveland, 4.
143 Thus, according to Spooner, individuals have exercised one of the salient rights affirmed by Spencer in the early editions of Social Statics—the right to ignore the state.
144 A Letter to Grover Cleveland, 17.
145 Ibid., 18–19.
146 Long, “Inside and Outside Spooner's Natural Law Jurisprudence.”
147 Natural Law, 16.
148 For a basic account of Locke on natural rights and on rights to extra-personal objects, see chapters 2 and 3 of Mack, John Locke.
* I thank the editors of Social Philosophy and Policy for their extremely helpful comments on an earlier draft of this essay.
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