If Spencer thought of human society as analogous to a biological organism - which he seems to have - then he might be characterized as viewing humanity as having an instinctive or reflexive tendency to locate authority and sovereignty somewhere. Having worked its way out of an age of monarchy, society merely shifted the locus of royal power from the king to the parliament. More generally, this might reveal a human tendency to follow - a tendency to assign a leadership role, to a monarch or to a legislature, and having made that assignment, to adopt a rather passive role of following, rather than subjecting king or parliament to extended continuous critique.
The great political superstition of the past was the divine right of kings. The great political superstition of the present is the divine right of parliaments. The oil of anointing seems unawares to have dripped from the head of the one on to the heads of the many, and given sacredness to them also and to their decrees.
Many - most? - humans tend to exert their critical faculties as infrequently as possible. Having assigned authority to a representative body, people for the most part patiently and obediently follow that body's dictates. Yet the will of the majority should be subject to scrutiny no less than the will of an absolute monarch. The notion, largely from Locke, that a government derives its legitimacy from the consent of the governed does not imply either the justice of that government's actions or that such government should be unlimited in power and ambition.
The divine right of parliaments means the divine right of majorities. The fundamental assumption made by legislators and people alike, is that a majority has powers which have no bounds. This is the current theory which all accept without proof as a self-evident truth. Nevertheless, criticism will, I think, show that this current theory requires a radical modification.
Spencer had rejected an offer to study at Cambridge, and so lacked any form of university training. After being taught mathematics, physics, and Latin by family members, the remainder of his intellectual formation was largely the result of his own independent reading. His family's views were 'nonconformist' and 'dissenting' in the strictly theological sense of those terms. While Spencer himself later adopted a principled agnosticism, his family's views made it easy for him to move toward anti-statist and free-market views. He formulates a critique of legislation along these lines: if the sovereignty lies with governed, how can the government claim to create rights and distributed them to the governed?
Mark, now, what happens when we put these two doctrines together. The sovereign people jointly appoint representatives, and so create a government; the government thus created, creates rights; and then, having created rights, it confers them on the separate members of the sovereign people by which it was itself created. Here is a marvellous piece of political legerdemain!
Involved in approving any piece of legislation, Spencer argues, is an attempted utilitarian calculation. Inasmuch as any bit of legislation will reduce utility, either by taxation or by regulation, the legislative body is apparently asserting the proposition that any such reduction will be offset, and more than offset, by an alleged increase in utility in some other way. This, then, brings with it a the whole host of questions and objections which can be, and are, raised against any utilitarian scheme: how does one measure utility? Which units of measure does one use? How does one compare relative amounts of utility? etc. Spencer himself is not against utilitarianism; indeed, he is probably espousing some form of it. But he is questioning the legislature's ability to competently dabble in utilitarian calculations.
Reduced to its lowest terms, every proposal to interfere with citizens' activities further than by enforcing their mutual limitations, is a proposal to improve life by breaking through the fundamental conditions to life. When some are prevented from buying beer that others may be prevented from getting drunk, those who make the law assume that more good than evil will result from interference with the normal relation between conduct and consequences, alike in the few ill-regulated and the many well-regulated. A government which takes fractions of the incomes of multitudinous people, for the purpose of sending to the colonies some who have not prospered here, or for building better industrial dwellings, or for making public libraries and public museums, etc., takes for granted that, not only proximately but ultimately, increased general happiness will result from transgressing the essential requirement to general happiness — the requirement that each shall enjoy all those means to happiness which his actions, carried on without aggression, have brought him.
With J.S. Mill, Spencer saw a tension within governments founded on majority rule. Such government represented progress in the general notion of liberty, allowing elections and placing sovereign power into the possession of the voters. However, the potential danger resulting was the possibility of a "tyranny of the majority" in phrased popularized, but not coined, by J.S. Mill. In such governments, the majority could elect representatives, or approve acts in direct referenda, which curtail freedom for some or all of the citizens. While both Spencer and Mill saw this danger, they responded differently to it. Spencer thought that reducing liberty would always reduce utility, and therefore would endorse no, or very few, restrictions on freedom; his understanding of utilitarianism was such that any reduction in freedom was necessarily a systematic reduction in utility. Spencer, therefore, stays closer than to Mill to the core tradition of classical liberalism in the sense of Locke, while yet departing in some respects from Locke. Mill, on the other hand, was more willing to allow limits on freedom, positing that some such limits might actually increase utility. Whether or not Spencer was a libertarian depends on one's definition of 'libertarian' but Spencer did write that
The function of Liberalism in the past was that of putting a limit to the powers of kings. The function of true Liberalism in the future will be that of putting a limit to the powers of Parliaments.
Although Spencer challenges the ability of the government to create rights, he nevertheless acknowledges a sort of procedural difference between “rights properly so-called” and “political” rights. This is necessary, he seems to think, because of the fact that humans are not perfect. In this, his sober appraisal of human nature allows for a practicality in his political philosophy, corresponding to his rejection of those who would based political philosophy on hypothetical speculations.
