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.)