His political and social views were perhaps shaped by his early training as a civil engineer and his work for the railroad. He had a strong distaste for any purely speculative system of politics or government: this is evident in, e.g., his analysis of passenger ship safety. He demonstrates quantitatively how legislation fails to protect passengers onboard, even when the precise purpose of the legislation is such protection.
The cause of repeatedly succumbing to the illusory hope that legislation can fix social problems, or other types of problems, even when anti-poverty legislation increases poverty, even when health legislation increases disease, is a type of intellectual arrogance. Spencer specifies this conceit:
There is a great want of this practical humility in our political conduct. Though we have less self-confidence than our ancestors, who did not hesitate to organize in law their judgments on all subjects whatever, we have yet far too much. Though we have ceased to assume the infallibility of our theological beliefs and so ceased to enact them, we have not ceased to enact hosts of other beliefs of an equally doubtful kind. Though we no longer presume to coerce men for their spiritual good, we still think ourselves called upon to coerce them for their material good: not seeing that the one is as useless and as unwarrantable as the other. Innumerable failures seem, so far, powerless to teach this.
Anticipating an objection - an objection which would argue that if legislation is folly, then it should be allowed and ignored, permitting foolish legislators to delude themselves, and permitting reasonable men to go about society's business while disregarding the legislature - Spencer shows, in his analysis, that legislation is not merely useless, but rather that it is also harmful. Ignoring legislation is not the solution, because the legislation will still be causing harm: legislation to provide economic opportunity in terms of housing instead decreased the quality of housing; legislation designed to make travel safer instead increased the spread of disease aboard ships; legislation designed to reduce the number of deaths in shipwrecks instead increased that number; legislation designed to improve public sanitation instead triggered the spread of contagious disease.
“Well; let the State fail. It can but do its best. If it succeed, so much the better: if it do not, where is the harm? Surely it is wiser to act, and take the chance of success, than to do nothing.” To this plea the rejoinder is that, unfortunately, the results of legislative intervention are not only negatively bad, but often positively so. Acts of Parliament do not simply fail; they frequently make worse. The familiar truth that persecution aids rather than hinders proscribed doctrines — a truth lately afresh illustrated by the forbidden work of Gervinus — is a part of the general truth that legislation often does indirectly, the reverse of that which it directly aims to do. Thus has it been with the Metropolitan Buildings’ Act. As was lately agreed unanimously by the delegates from all the parishes in London, and as was stated by them to Sir William Molesworth, this act “has encouraged bad building, and has been the means of covering the suburbs of the metropolis with thousands of wretched hovels, which are a disgrace to a civilized country.” Thus, also, has it been in provincial towns. The Nottingham Inclosure Act of 1845, by prescribing the structure of the houses to be built, and the extent of yard or garden to be allotted to each, has rendered it impossible to build working-class dwellings at such moderate rents as to compete with existing ones. It is estimated that, as a consequence, 10,000 of the population are debarred from the new homes they would otherwise have, and are forced to live crowded together in miserable places unfit for human habitation; and so, in its anxiety to insure healthy accommodation for artisans, the law has entailed on them still worse accommodation than before. Thus, too, has it been with the Passengers’ Act. The terrible fevers which arose in the Australian emigrant ships a few months since, causing in the Bourneuf 83 deaths, in the Wanota 39 deaths, in the Marco Polo 53 deaths, and in the Ticonderoga 104 deaths, arose in vessels sent out by the government; and arose in consequence of the close packing which the Passengers’ Act authorizes. Thus, moreover, has it been with the safeguards provided by the Mercantile Marine Act. The examinations devised for insuring the efficiency of captains, have had the effect of certifying the superficially-clever and unpractised men, and, as we are told by a shipowner, rejecting many of the long-tried and most trustworthy: the general result being that the ratio of shipwrecks has increased. Thus also has it happened with Boards of Health, which have, in sundry cases, exacerbated the evils to be removed; as, for instance, at Croydon, where, according to the official report, the measures of the sanitary authorities produced an epidemic, which attacked 1600 people and killed 70. Thus again has it been with the Joint Stock Companies Registration Act. As was shown by Mr. James Wilson, in his late motion for a select committee on life-assurance associations, this measure, passed in 1844 to guard the public against bubble schemes, actually facilitated the rascalities of 1845 and subsequent years. The legislative sanction, devised as a guarantee of genuineness, and supposed by the people to be such, clever adventurers have without difficulty obtained for the most worthless projects. Having obtained it, an amount of public confidence has followed which they could never otherwise have gained. In this way literally hundreds of sham enterprises that would not else have seen the light, have been fostered into being; and thousands of families have been ruined who would never have been so but for legislative efforts to make them more secure.
One of the factors which dooms legislation to uselessness, and to causing unintended but very real harm, is sheer complexity. Whether in economics or in healthcare, any action will have myriads of unforeseeable and unpredictable consequences: unforeseeable and unpredictable in practice, because of complexity. In hypothetical models, cause and effect behave in mechanistic and mathematical ways. In practical situations, there are too many variables, and variables of which nobody is aware, and so hypothetical models do not serve. The causes for the problems which we wish to solve, and the effects of our proposed solutions, are part of web of cause and effect which is infinite, or nearly so, and which contains links of which we are unaware.
Moreover, when these topical remedies applied by statesmen do not exacerbate the evils they were meant to cure, they constantly induce collateral evils; and these often graver than the original ones. It is the vice of this empirical school of politicians that they never look beyond proximate causes and immediate effects. In common with the uneducated masses they habitually regard each phenomenon as involving but one antecedent and one consequent. They do not bear in mind that each phenomenon is a link in an infinite series — is the result of myriads of preceding phenomena, and will have a share in producing myriads of succeeding ones. Hence they overlook the fact that, in disturbing any natural chain of sequences, they are not only modifying the result next in succession, but all the future results into which this will enter as a part cause. The serial genesis of phenomena, and the interaction of each series upon every other series, produces a complexity utterly beyond human grasp. Even in the simplest cases this is so.
There are two parts to Spencer's question: first, of what the government is capable; second, how those capabilities are directed. First, the government is perhaps capable of effecting in some cases a salutary change; second, however, the government's capabilities are set into motion and directed by a process which is political, i.e., which has to do with human ambition, human machinations, and desires based upon perceptions. Anyone who closely watches any legislative body for any length of time, who observes how proposals and bills are brought forth, how they are discussed and examined, and how individual legislators cast their votes, will understand the difference between neat theories of government and the messy business of legislation in reality. To assume that legislators will proceed rationally, calculating the utility of proposals logically, is folly.
But the thing to be discussed is, not so much whether, by any amount of intelligence, it is possible for a government to work out the various ends consigned to it, as whether its fulfilment of them is probable. It is less a question of can than a question of will. Granting the absolute competence of the State, let us consider what hope there is of getting from it satisfactory performance. Let us look at the moving force by which the legislative machine is worked, and then inquire whether this force is thus employed as economically as it would otherwise be.
Herbert Spencer formed his thought under the influence of his practical experience. He began studying engineering, which at that time was a practical course of study in the manner of an apprenticeship and which was not conducted at universities, in 1837, working for Charles Fox on the London and Birmingham Railway. This railway, and railways in general, were in those days still new things. Various practical problems arose frequently, demanding solutions, and the technology was being continually refined and improved. Spencer saw that this did not happen by means of hypothetical speculations. He also saw that this progress was driven by clear goals, motives, and desires. The focus created by a distinctly-framed objective, i.e., to provide efficient and quick railway transportation which generated profits for shareholders, provided the impetus for the railway's technological progress. Legislatures, by contrast, are ever diffuse and divided among themselves, rarely sharing such a crystalized objective, and more often deliberately divided, as representatives are sometimes elected precisely because they oppose the views and plans of other legislators.
Manifestly, as desire of some kind is the invariable stimulus to action in the individual, every social agency, of what nature soever, must have some aggregate of desires for its motive power. Men in their collective capacity can exhibit no result but what has its origin in some appetite, feeling, or taste common among them. Did not they like meat, there could be no cattle-graziers, no Smithfield, no distributing organization of butchers. Operas, Philharmonic Societies, song-books, and street organ-boys, have all been called into being by our love of music.
From a lack of focus arises a lack of speed. This, however, should not be repaired by desiring a quicker and more efficient and more unified government: that would only cause the legislature to be more skilled at removing the individual's freedom. Rather than lamenting the government's inefficiency and lethargy, it is much better simply not to assign tasks to the government, and rather let the organs of society, which tend to be more effective, address those problems.
Officialism is habitually slow. When non-governmental agencies are dilatory, the public has its remedy: it ceases to employ them and soon finds quicker ones. Under this discipline all private bodies are taught promptness.
Legislation requires application and interpretation. If, however, there is no clear goal in the mind of the bureaucrat - no goal other than mechanistically applying and interpreting regulations - then the process becomes woodenly literal and is oblivious to nonsensical applications which will inevitably arise. Perhaps the legislators had some purpose in mind as they created the regulation, but the bureaucrat has merely the text of the regulation in his possession, not the grand thoughts of the legislators.
Again, officialism is stupid. Under the natural course of things each citizen tends towards his fittest function. Those who are competent to the kind of work they undertake, succeed, and, in the average of cases, are advanced in proportion to their efficiency; while the incompetent, society soon finds out, ceases to employ, forces to try something easier, and eventually turns to use. But it is quite otherwise in State-organizations. Here, as every one knows, birth, age, back-stairs intrigue, and sycophancy, determine the selections rather than merit.
The legislators who make regulations, and the bureaucrats who enforce them, have no motive for careful stewardship of public funds - their own welfare will not benefit from responsible management of funds, nor will it be harmed by negligent use of the same.
A further characteristic of officialism is its extravagance.
Private enterprise is driven, by competing to offer both the lowest prices to consumers and the highest returns to investors, to efficiently use capital. No such drive informs the actions of government.
These public agencies are subject to no such influence as that which obliges private enterprise to be economical. Traders and mercantile bodies succeed by serving society cheaply. Such of them as cannot do this are continually supplanted by those who can. They cannot saddle the nation with the results of their extravagance, and so are prevented from being extravagant.
Creativity and improvisation are the fruit of goal-oriented behavior. Scientific discovery and technological inventions arise in the minds, and in the workshops, of people who are working toward some clear objective. Yet the lack of a clear objective is often the defining characteristic of governmental offices. Hence the lack of inventiveness, and a tendency to inertia, is essential to government.
The unadaptiveness of officialism is another of its vices. Unlike private enterprise which quickly modifies its actions to meet emergencies — unlike the shopkeeper who promptly finds the wherewith to satisfy a sudden demand — unlike the railway company which doubles its trains to carry a special influx of passengers; the law-made instrumentality lumbers on under all varieties of circumstances through its ordained routine at its habitual rate. By its very nature it is fitted only for average requirements, and inevitably fails under unusual requirements.
Corruption and dishonesty is part of the human condition - the fact that humans are by nature imperfect. It is important to acknowledge this aspect of human nature, because only then can one begin to perhaps manage it. Although greed, or the love of money, is a root of all evil, it is also true that the responsible management of money is an impetus toward diligence and productivity. As government fails to value money, fails to understand its responsibilities as steward of the public wealth, so it fails to derive from money the beneficial motivations, and is left only with greed and corruption. Government must ever fail to fully execute its responsibility as steward of the public wealth, because it is depersonalized: decisions made by legislators corporately, not individually, over money which neither belongs to them, nor for the misuse of which they will in any way be held accountable. Of the mountains of money squandered, of the territories driven into debt and poverty, by the actions of its legislators - in which of them have the legislators faced consequences for their foolishness?
How invariably officialism becomes corrupt every one knows. Exposed to no such antiseptic as free competition — not dependent for existence, as private unendowed organizations are, on the maintenance of a vigorous vitality; all law-made agencies fall into an inert, over-fed state, from which to disease is a short step. Salaries flow in irrespective of the activity with which duty is performed; continue after duty wholly ceases; become rich prizes for the idle well born; and prompt to perjury, to bribery, to simony.
Accusing mindless legislatures of operating impractically and relying on hypothetical and speculative models, Spencer wished to protect himself from the same charge. His first major book, Social Statistics, published in 1851, not only offered a structure for evidence by which Spencer hoped to support his views, but also offered a structure for an entire branch of this academic discipline.
To all which broad contrasts add this, that while private bodies are enterprising and progressive, public bodies are unchanging, and, indeed, obstructive. That officialism should be inventive nobody expects. That it should go out of its easy mechanical routine to introduce improvements, and this at a considerable expense of thought and application, without the prospect of profit, is not to be supposed. But it is not simply stationary; it resists every amendment either in itself or in anything with which it deals.
Herbert Spencer proposes that one compare, on the one hand, the behavior of organizations formed by legislation, to, on the other hand, purpose-driven organizations formed by the right of free association among citizens who gathered themselves around some goal or objective.
Between these law-made agencies and the spontaneously formed ones, who then can hesitate? The one class are slow, stupid, extravagant, unadaptive, corrupt, and obstructive: can any point out in the other, vices that balance these? It is true that trade has its dishonesties, speculation its follies. These are evils inevitably entailed by the existing imperfections of humanity. It is equally true, however, that these imperfections of humanity are shared by State-functionaries; and that being unchecked in them by the same stern discipline, they grow to far worse results.
Although he makes a strong argument for the uselessness and danger of legislation, Spencer does not consistently make equally strong arguments for the humane benefits which arise from "spontaneously formed agencies" - indeed, he has been accused of being a "social Darwinist," a charge against which he has been defended by some scholars, notably David Weinstein. Far from being a social Darwinist, Spencer sees that his program of reducing legislation would free the humanitarian aspects of society to energize charitable activity.
If, however, we would duly appreciate the contrast between the artificial modes and the natural modes of achieving social desiderata, we must look not only at the vices of the one but at the virtues of the other. These are many and important. Consider first how immediately every private enterprise is dependent on the need for it; and how impossible it is for it to continue if there be no need. Daily are new trades and new companies established. If they subserve some existing public want, they take root and grow. If they do not, they die of inanition.
Spencer notes that free private associations are, in his jargon, "exogenous," meaning that they are called into being, formed, and directed by external circumstances and conditions; while legislatively-formed agencies are "endogenous," meaning that they are instituted by legislation, at best an indirect response to some external reality, and not by a direct response to some condition or circumstance. The need for food in a growing town is met by private decisions to create bakeries and grocery stores; they will grow, shrink, or pass out of existence as the need for food in the town changes. But a governmentally-formed institution will grow or shrink independently of the need which is intended to meet.
Were there space, much more might be said upon the superiority of what naturalists would call the exogenous order of institutions over the endogenous one. But, from the point of view indicated, the further contrasts between their characteristics will be sufficiently visible.
The successes of free private enterprise are powerfully manifest: one need only mention the names of great corporations and businesses. Likewise, the responsiveness of the free enterprise system is powerfully seen as each of those businesses has in the past, or will one day in the future, pass out of existence. Consider the names: IBM, United States Steel, General Motors, Western Union, Apple Computers, Microsoft, etc. Each of those giants began as a small decision among a small group of people; the growth, based upon external conditions, multiplies that small seed many times.
By contrast, governmental programs are announced to the world as a panacea and a cure for sundry social ills. Yet, as time passes, each is inevitably exposed to be considerably less than what it was announced to be. Whether or not it continues to exist, however, bears no direct relationship to any measurement of its success or failure.
Hence then the fact, that while the one order of means is ever failing, making worse, or producing more evils than it cures, the other order of means is ever succeeding, ever improving. Strong as it looks at the outset, State-agency perpetually disappoints every one. Puny as are its first stages, private effort daily achieves results that astound the world.
There is an irrational sentiment, almost akin to religious faith, which motivates the public to look to the next governmental program to cure the ills of the moment, despite the long trail of similar programs which have failed miserably in the past. It is perhaps some deep hope in human nature which flies in the face of all empirical understanding - a hope which rises ever again - a hope that this government program will succeed, where a nearly infinite number of other government programs have failed. That there is no significant difference between the latest proposal and the long list of failed proposals should, but does not, alert the public to the vanity of this hope.
This strong faith in State-agencies is, however, accompanied by so weak a faith in natural agencies (the two being antagonistic), that, spite of past experience, it will by many be thought absurd to rest in the conviction that existing social needs will be spontaneously met, though we cannot say how they will be met. Nevertheless, illustrations exactly to the point are now transpiring before their eyes.
Every bit of time, money, and energy directed into a futile enterprise is at the same time wanting in some beneficial enterprise. Resources flowing into a legislatively-instituted undertaking are not available to an activity which might have humane and salutary effects among society.
To the immense positive evils entailed by over-legislation have to be added the equally great negative evils — evils which, notwithstanding their greatness, are scarcely at all recognized, even by the far-seeing. While the State does those things which it ought not to do, as an inevitable consequence, it leaves undone those things which it ought to do. Time and activity being limited, it necessarily follows that legislators’ sins of commission entail sins of omission. Mischievous meddling involves disastrous neglect; and until statesmen are ubiquitous and omnipotent, must ever do so. In the very nature of things an agency employed for two purposes must fulfil both imperfectly; partly because, while fulfilling the one it cannot be fulfilling the other, and partly because its adaptation to both ends implies incomplete fitness for either.
The illusion of legislative effectiveness has this consequence: that people are misled into discussing the various options currently being introduced, into contemplating revisions of what has been enacted, or speculating about what might be drafted and proposed - instead of dismissing the entire notion of legislation as helpful. Citizens are seduced into analyzing competing proposals, past proposals, and future proposals - instead of simply defunding and rendering the legislature as impotent, because it can be of no use.
See here, then, the proximate cause of our legal abominations. We drop the substance in our efforts to catch shadows. While our firesides, and clubs, and taverns are filled with talk about corn-law questions, and church questions, and education questions, and poor-law questions — all of them raised by over-legislation — the justice question gets scarcely any attention; and we daily submit to be oppressed, cheated, robbed.
While Herbert Spencer is not naive enough to believe that we can proceed without any government whatsoever, or that we should embrace some form of anarchism, he is realistic enough to see legislation as a source, perhaps the largest single source, of misery among people.
How vast then is the negative evil which, in addition to the positive evils before enumerated, this meddling policy entails on us! How many are the grievances men bear, from which they would otherwise be free! Who is there that has not submitted to injuries rather than run the risk of heavy law-costs? Who is there that has not abandoned just claims rather than “throw good money after bad?” Who is there that has not paid unjust demands rather than withstand the threat of an action?
To which extent Spencer was a Darwinist is not clear, but it is certain that he saw social institutions as, in some sense, evolving - responding to changing conditions by reorganizing themselves. He saw legislation as an ossifying effect, hindering progress by reducing the flexibility of social institutions.
See then how this vicious policy complicates itself. Not only does meddling legislation fail to cure the evils it aims at; not only does it make many evils worse; not only does it create new evils greater than the old; but while doing this it entails on men the oppressions, robberies, ruin, which flow from the non-administration of justice. And not only to the positive evils does it add this vast negative one, but this again, by fostering many social abuses that would not else exist, furnishes occasions for more meddlings which again act and re-act in the same way. And thus as ever, “things bad begun make strong themselves by ill.”
Herbert Spencer manifests his thought as complex: rejecting both atheism and organized religion, he presents himself as a principled agnostic; embracing some form of evolutionary theory, he rejects social Darwinism; accused of social Darwinism, he sees instead a humane aspect to a society freed from excessive legislation and freed to charitable altruism. In any case, he sets forth an insightful critique of legislation and regulation.
