Libertarian Legal Theory:
Larry Solum has a wonderfully concise new entry in his Legal Theory Lexicon on Libertarian Legal Theory. (This is on the beta version Legal Theory Blog.) Legal Theory Lexicon is, by the way, and excellent resource for anyone who is heading for law school in the fall.

Larry even mentions Social Statics (1852) by Herbert Spencer, the book that Justice Holmes took a shot at in Lochner. It is a radical book and not everyone's cup of tea. But it was very popular —popular enough for Holmes to mention it fifty years after its initial publication—and ahead of its time in many ways. For one thing, it contains an entire chapter advocating the equal rights of women. Here is how that chapter opens:
EQUITY knows no difference of sex. In its vocabulary the word man must be understood in a generic, and not in a specific sense. The law of equal freedom manifestly applies to the whole race—female as well as male. The same à priori reasoning which establishes that law for men (Chaps. III. and IV.), may be used with equal cogency on behalf of women. The Moral Sense, by virtue of which the masculine mind responds to that law, exists in the feminine mind as well. Hence the several rights deducible from that law must appertain equally to both sexes.

This might have been thought a self-evident truth, needing only to be stated to meet with universal acceptation. There are many, however, who either tacitly, or in so many words, express their dissent from it. For what reasons they do so, does not appear. They admit the axiom, that human happiness is the Divine will; from which axiom, what we call rights are primarily derived. And why the differences of bodily organization, and those trifling mental variations which distinguish female from male, should exclude one half of the race from the benefits of this ordination, remains to be shown. The onus of proof lies on those who affirm that such is the fact; and it would be perfectly in order to assume that the law of equal freedom comprehends both sexes, until the contrary has been demonstrated. But without taking advantage of this, suppose we go at once into the controversy. . . .
[Of course Spencer was also known for his beliefs in "Social Darwinism," but this should be put in perspective. Social Darwinism was a very popular theory that was widely held among Conservatives, Socialists and Progressives as well as by Liberals like Spencer. (I believe Holmes himself was a Social Darwinist.) At any rate, that is not the subject of Social Statics, which is a defense of Spencer's "law of equal freedom."]

(Civil comments only please.)
davidbernstein (mail):
"Social Statics" obviously has nothing to do with "Darwinism," and Spencer's libertarian views obviously predate "Darwinism," given that Social Statics was published several years before The Origin of Species. Spencer was certainly interested in evolutionary theories of society but spent much (all?) of his career as a Lamarckian. Holmes was indeed a Social Darwinist, as evidenced by language in his Lochner dissent, among other things.
7.17.2006 10:58am
davidbernstein (mail):
By the way, I point in a recent paper that re Holmes's Lochner dissent, "in context it is clear that Holmes is using Spencer as an example of a believer in extreme laissez-faire libertarianism, and is not accusing the majority of Social Darwinism. Holmes may have chosen Spencer because Holmes was a master of the flip aphorism, and Spencer's Social Statics is a memorable alliteration. The source of the continuing confusion about Social Darwinism seems to be that, as an informal survey I took suggests, the vast majority of constitutional law professors have no idea what Social Statics is, but do know that Spencer is reputed to have been a Social Darwinist."
7.17.2006 11:00am
John T (mail):
The fact that Holmes authored Buck v. Bell should be evidence enough that he was a Social Darwinist.
It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.
Three generations of imbeciles is enough.
7.17.2006 11:11am
anonyomousss (mail):
larry writes that:
First, for a strict utilitarian, the distribution of utility itself is of no moral significance: classical utilitarians believe that the sum of utilities should be maximized, even if that means that some will be very well off and others very poor.
my understanding is that this it's a very superficial reading of the classical utilitarians to see them as endorsing this particular principle. the principle was "the greatest good for the greatest number," the interpretation of which is far from immediately obvious and was used by the utilitarians in different ways. consider the difference between maximizing the sum of utilities and maximizing the product of utilities.

this particular interpretation is very common among economists and the law and economics movement, what with their interpretation in terms of the (grossly immoral) principle that total social wealth should be maximized.
7.17.2006 11:27am
M (mail):
Henry Sidgwick gives Spencer a pretty sound thrashing in _Methods of Ethics_. Since Sidgwick was so smart, and seemingly quite fair to his opponents this has made me even more skeptical that there's much of interest in Spencer.
7.17.2006 11:52am
Lawrence Solum (mail) (www):
"Classical utilitarian" is a term of art, and it refers to sum-total utilitarianism. Bernoulli-Nash Social Welfare Functions (which take the product of utilities) are popular among economists, but do not seem to have occurred to the important early utilitarian theorists.
7.17.2006 11:54am
Randy Barnett (mail) (www):

Pretty much every major theorist has received a sound thrashing. While being thrashed by Sidgwick does not make Spencer a good theorist, it does suggest he was important enough to merit Sidgwick's attention. In any case, the fact that a theorist is wrong does not make him uninteresting. If that were so, we would only be interested in studying theorists with whom we agree.
7.17.2006 12:42pm
Christopher (mail) (www):
It's a fascinating discussion, and I'll limit my own comment to an ancillary point raised by John T.

Buck v. Bell can't properly be said to be evidence that Holmes was a social darwinian. The case wasn't about letting "imbeciles" starve. It was about an act of statist central planning designed to keep them from being born.
7.17.2006 10:02pm
Steve Donohue (mail) (www):
Holmes certainly was a Social Darwinist- his concept of Social Darwinism simply also included the legislative process: the stronger would inevitably legislate in a way to favor themselves and humanity. Hence his dissent in Lochner and other such cases.
7.17.2006 10:04pm
Robert Lutton:
Speaking of libertarian legal theory, what is the thinking about the government or police punishing someone for making a mistake?

Let us say for example that someone buys a gun and while hunting acidentally shoots me as I pet my tame dear in my backyard petting zoo. He is out in the woods that abuts my property and is unaware of my predilictions.

So, does he go to jail? (I assume that I could sue for some money). Or should I just try to overthrow the libertarian regime and institute a statist regime with gun control.
7.17.2006 11:48pm
Christopher (mail) (www):

I'm not disputing that Holmes was a social darwinian in the sense you specify, only that Buck v. Bell doesn't provide evidence for it. One could certainly read Buck v. Bell in other ways -- unless you would characterize every eugenicist as a social darwinist, which seems to me too broad a use of the label.
7.18.2006 4:12pm