Here's a quotation from
Herbert Spencer's 'The Man versus the State', from 1884, discussing the limitations on government. I would have made it shorter but it all seemed relevant, nevertheless you can find it in its context via the link, and read what happened next, as Spencer takes Bentham to task for his circular logic.
"Were all Englishmen now asked if they would agree to cooperate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very emphatic “No” from a large part of them. If, in pursuance of a proposal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner if (to take an actual question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, certainly half, and probably more than half, would be unwilling. Similarly with respect to many other actions which most men now-a-days regard as of purely private concern. Whatever desire there might be to cooperate for carrying on, or regulating, such actions, would be far from a unanimous desire. Manifestly, then, had social cooperation to be commenced by ourselves, and had its purposes to be specified before consent to cooperate could be obtained, there would be large parts of human conduct in respect of which cooperation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightly exercised.
Turn now to the converse question—For what ends would all men agree to cooperate? None will deny that for resisting invasion the agreement would be practically unanimous. Excepting only the Quakers, who, having done highly useful work in their time, are now dying out, all would unite for defensive war (not, however, for offensive war); and they would, by so doing, tacitly bind themselves to conform to the will of the majority in respect of measures directed to that end. There would be practical unanimity, also, in the agreement to cooperate for defence against internal enemies as against external enemies. Omitting criminals, all must wish to have person and property adequately protected. Each citizen desires to preserve his life, to preserve things which conduce to maintenance and enjoyment of his life, and to preserve intact his liberties both of using these things and getting further such. It is obvious to him that he cannot do all this if he acts alone. Against foreign invaders he is powerless unless he combines with his fellows; and the business of protecting himself against domestic invaders, if he did not similarly combine, would be alike onerous, dangerous, and inefficient. In one other cooperation all are interested—use of the territory they inhabit. Did the primitive communal ownership survive, there would survive the primitive communal control of the uses to be made of land by individuals or by groups of them; and decisions of the majority would rightly prevail repecting the terms on which portions of it might be employed for raising food, making means of communication, and for other purposes. Even at present, though the matter has been complicated by the growth of private landownership, yet, since the State is still supreme owner (every landlord being in law a tenant of the Crown) able to resume possession, or authorize compulsory purchase, at a fair price; the implication is that the will of the majority is valid respecting the modes in which, and conditions under which, parts of the surface or subsurface, may be utilized: involving certain agreements made on behalf of the public with private persons and companies.
Details are not needful here; nor is it needful to discuss that border region lying between these two classes of cases, and to say how much is included in the last and how much is excluded with the first. For present purposes, it is sufficient to recognize the undeniable truth that there are numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would almost unanimously agree to be thus bound. Here, then, we find a definite warrant for enforcing the will of the majority within certain limits, and a definite warrant for denying the authority of its will beyond those limits.
But evidently, when analysed, the question resolves itself into the further question—What are the relative claims of the aggregate and of its units? Are the rights of the community universally valid against the individual? or has the individual some rights which are valid against the community? The judgement given on this point underlies the entire fabric of political convictions formed, and more especially those convictions which concern the proper sphere of government. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable.
Says Professor Jevons, in his work, The State in Relation to Labour,—” The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights.” Of like character is the belief expressed by Mr. Matthew Arnold in his article on Copyright: “An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire.” So, too, I recently read in a weekly journal of high repute, that “to explain once more that there is no such thing as “natural right” would be a waste of philosophy.” And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any other.
One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now whatever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquiries, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is; and what results when we go behind it and seek its warrant.
On reverting to Bentham, we find this counter-proposition openly expressed. He tells us that government fulfils its office “by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property” ; etc. Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous, did it come to us from ancient Peru, where the Ynca “was the source from which everything flowed” ; or from Shoa (Abyssinia), where “of their persons and worldly substance he [the King] is absolute master” ; or from Dahome, where “all men are slaves to the king”; it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his Constitutional Code he fixes the sovereignty in the whole people; arguing that it is best “to give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object,” because “this proportion is more apt than any other that can be proposed” for achievement of that object.
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! Mr. Matthew Arnold, contending, in the article above quoted, that “property is the creation of law,” tells us to beware of the “metaphysical phantom of property in itself.” Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agent, which creates the thing, and then confers the thing on its own creator!"
Taken from the chapter 'The great political superstition'.
