Another great dickh**d of history

While this example might suggest that the “Law of equal freedom” might need a little modification, Spencer gives short shrift to the idea that there is anything missing in this first principle of his moral system:

Upon a partial consideration this statement of the law will perhaps seem open to criticism. It may be thought better to limit the right of each to exercise his faculties, by the proviso that he shall not hurt any one else - shall not inflict pain on any one else. But although at first sight satisfactory, this expression of the law allows of erroneous deductions.

It is true that men, answering to those conditions of greatest happiness set forth in the foregoing chapter, cannot exercise their faculties to the aggrieving of one another ... The giving of pain may have two causes. Either the abnormally-constituted man may do something displeasing to the normal feelings of his neighbours, in which case he acts wrongly; or the behaviour of the normally-constituted man may irritate the abnormal feelings of his neighbours; in which case it is not his behaviour that is wrong, but their characters that are so.

Under such circumstances the due exercise of his faculties is right, although it gives pain; and the remedy for the evil lies in the modification of those abnormal feelings to which pain is given. (Social Statics, Chapter VI “First Principle": (original emphasis).)

So, if one day you're walking down the street and a complete stranger bounces your knackers off your tonsils with a well placed size 11 Blunny there are two possible explanations: your assailant is a person of defective moral sense and you have every right to feel aggrieved, or your own character is so defective that you cannot recognise the rightness of his action.

In view of the latter possibility, we must regard the various laws prohibiting assault as an affront to morality, as Spencer defines it. Unless the assault results in the death of the victim; that would deprive him of the right to life which is such an obvious corollary of his first principle “as scarcely to need a separate statement”.

What, exactly, society should do to uphold and protect your right to life, Spencer declines to say:

Into such questions as the punishment of death, the perpetual imprisonment of criminals, and the like, we cannot here enter. These implying, as they do, antecedent infractions of the law, and being, as they are, remedial measures for a diseased moral state, belong to what has been elsewhere termed Therapeutical Ethics, with which we have now nothing to do. (Social Statics, Chapter VIII: “The Rights of Life and Personal Liberty".)

In fact, looking to part III of Social Statics, there are good grounds for thinking that Spencer's “law of equal freedom” prohibits the state from doing anything to protect your right to life, if that involves the use of punishment to deter criminal behaviour:

Derived ... as it is, directly from the Divine will, and underlying as it does the right organization of society, the law of equal freedom is of higher authority than all other laws. (Social Statics, Chapter XVIII “Political Rights".)

So high is the authority of the “law of equal freedom” that every individual has the right to ignore the state (Chapter XIX) and become an outlaw, voluntarily giving up the protections of the state. This might be the proper thing for any perfect man who finds himself living in our society to do because government is “essentially immoral”:

Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong, or, as we say, despotic, when crime is great? Is there not more liberty, that is, less government, as crime diminishes? And must not government cease when crime ceases, for very lack of objects on which to perform its function? Not only does magisterial power exist because of evil, but it exists by evil. Violence is employed to maintain it; and all violence involves criminality. (Social Statics, Chapter XIX: “The right to ignore the state".)

So it appears that in a properly constituted moral state - one which doesn't use criminality to maintain magisterial power - you'd just have to cop it sweet if a random stranger made you the victim of a random act of violence as you were walking along the street. Any punishment for murder which involved depriving the offender of life or liberty would be equally criminal - a truly moral state which upholds Spencer's law of equal freedom would do nothing about it.

But nor would it interfere if someone decided to exact a private revenge - in fact, the private revenge, in Spencer's terms, can be justified as the natural penalty for being so deficient in moral sense and reason as to assault or kill someone.