Spencer and evolutionary theory of law

S Debabrata Reddy, Student of Law, VIT LAW School, Chennai

Herbert Spencer (1820-1903) was an English philosopher and sociologist who became the author of a theory of law, justice, and society strongly influenced by Charles Darwin’s Origin of Species. Generally, the concept of evolution was first introduced by Jean Baptiste Lamarck and Charles Darwin. Lamarck coined the term “invertebrates” and believes in his “theory of inheritance of acquired characteristics”. His example was that of “giraffe’s neck”, ((Lamarck’s theory of inheritance to acquired characteristics, NCERT Biology XII))in ancient times giraffe used to have a small neck and it used to eat leaves from tall trees and due to this its neck got stretched and it became longer and later on it became a permanent trait in giraffes. Charles Darwin’s concept was the “theory of natural selection” in which he lays down his stress on “survival of fittest”. Survival of fittest is that animals which are best adapted to the present environmental conditions only survive. For example “dinosaur” it couldn’t adapt itself to the environmental conditions and as a result of which it got extinct ((Theory of Natural Selection – origin of species)).

Spencer’s evolutionary theory of law speaks about a society that existed before and a society that exists now. He considers civilization and law as products of biological, organic evolution, with struggle for existence, natural selection, and survival of fittest as its principal determining factors. To him evolution revealed itself in differentiation, individuation, and increasing division of labor. According to him, civilization was a gradual progress of social life from simple to more complex forms. He distinguishes development of civilization into two stages: primary or military form of society and a progressive society.

Primary society: –

  • It is a war-like society and compulsion is a force or method which is used and status is used as a regulatory device.
  • It is the current type, modern or industrial form of society with peace, freedom and contract as the controlling elements.

Progressive society: – Its development was marked by an increasing delimitation of the functions of the government in favor of individual liberty.

  • The function of the state is just to protect the human beings.
  • Government is confined only to enforcement of contracts.
  • Even if there is a clash between people, the government should not interfere rather it should guarantee mutual protection.
  • The state should not interfere in any social activity like public education, public communication, public hospitals, government operated- postal systems, poor laws, etc. i.e. social legislation ((Jurisprudence by Edgar Bodenheimer, sec.20, pg. 78)).
  • This concept can be correlated with Henry Maine’s status to contract theory ((See Henry Maine’s Doctrine)).

Spencer’s concept of justice was shaped by idea of liberty and is composed of two elements. One is the egoistic element and another one is altruistic element. Egoistic and altruistic doesn’t mean being self-centered or selfish and selfless but it is much different from what they actually mean. The egoistic element of justice means man derive the utmost benefit from nature and capabilities. It says one develops oneself if he is capable enough and is willing. The altruistic element of justice is conscious of the limits which the existence of other men having claims necessarily imposes upon the exercise of freedom i.e. if a person tries to develop then no one is to interfere in his works. Then the combination of both the elements give “equal freedom”, formulated by Spencer as follows: “every man is free to do that which he wills, provided that he doesn’t infringe the equal freedom of any other man”. This concept is a strong reminiscent of Kant’s definition of law.

This law of “equal freedom” clearly and unequivocally expressed a notion of justice adapted to a period of individualism and laissez faire. His strong individualism even prompted him to deny the attribute of right to social “rights”, which only the state could guarantee and implement such as the right to work and the right to public maintenance in case of indigence. He is even reluctant to recognize the “right to vote” as a political right of every citizen and says it is not a representation of individuals but representation of interests ((On Spencer see Friedmann, Legal Theory,5th edn.)).

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