From The Freeman, Vol. 48, No. 4, pp.223-227.

by Wendy McElroy

Two of the most important concepts that emerge in any discussion of liberty are 'the State' and 'Society', but it is often far from clear what any given person means by those terms. Part of the confusion stems from the fact that the definitions can shift dramatically depending upon the theoretical approach of the speaker. Virtually all individualists agree that there is some distinction to be drawn between a State and a Society. But exactly where the line should be drawn has been the subject of active debate, at least since the writings of the 17th century English classical liberal John Locke.

The 19th-20th century German sociologist Franz Oppenheimer spearheaded an analysis of these key terms in his classic work The State. Oppenheimer defined the State, "I mean by it that summation of privileges and dominating positions which are brought into being by extra-economic power....I mean by Society, the totality of concepts of all purely natural relations and institutions between man and man..."(xxxiii).(1) He contrasted what he terms 'the political means' with 'the economic means' of acquiring wealth or power. The State uses the political means -- in other words, force -- to plunder and exploit Society which used the economic means -- in other words, co-operation. Thus, the State was the enemy of Society.

The 20th century American individualist Albert Jay Nock was one of the main conduits of Oppenheimer's thought into the United States. He captured his mentor's sentiment in a book entitled Our Enemy the State. Nock wrote, "Taking the State wherever found, striking into its history at any point, one sees no way to differentiate the activities of its founders, administrators, and beneficiaries from those of a professional-criminal class."(2)

At this point in his argument, however, Nock introduced a third concept into his discussion of liberty, that of 'Government'. Nock's Government is an agency that protects individual rights within Society presumably in exchange for a 'fee', such as embodied in a reasonable tax rate. Nock was not along in distinguishing between a Government and the State: the anti-statist philosopher Ayn Rand also embraced the concept of a limited Government that would function as a night watchman, unobtrusively protecting the person and property of its customers. Indeed, Oppenheimer himself left the door open for a distinct agency called Government when he declared, in the concluding paragraph to the introduction to The State, "Others may call any form of leadership and government or some other ideal the 'State.' That is a matter of personal style."(xxxiii)

The contemporary philosopher Tibor Machan offered his definitional distinction between the State and an agency called Government. The State was a jurisdictional claim to territorial sovereignty that persisted through time. The Government was the actual agency that acted to carry out the decrees of the State. Thus, the Government might change from Republican to Democrat, but the State remained the same. Whether Reagan or Clinton occupies the White House, each man would represent the same State that derived its legitimacy from the American Revolution and the ratification of the U.S. Constitution.

More radical voices within the individualist tradition, such as that of the economist Murray Rothbard, did not draw such a distinction between State or Government. Or, to the extent they viewed the two as technically separate entities, such individualist anarchists typically condemned both as being invasive. They asked a haunting question: how can any agency or institution rightfully claim a monopoly jurisdiction over providing 'a service' to customers who do not wish to subscribe to it? If Government provides a service, like a night watchman, can you take your business elsewhere?

The discussion of individual freedom returns inevitably to how the key concepts of the State, Society, and the Government are being defined. And in pursuing those definitions one fact becomes quickly apparent. They are more than a matter of personal style, as Oppenheimer suggested: they involve deep ideological and historical disagreements with equally profound implications.

What is the Nature of the State?

Whenever you speak of 'the State', you are dealing with an abstraction and intellectual care must be taken not to make something overly concrete of it. The analytic approach traditionally adopted by classical liberals is called methodological individualism. This approach claims that only individuals exist, and that the institutions of society -- such as the Family, the Church, the State -- all result from and can analyzed in terms of individuals interacting with each other within those particular institutional frameworks. Thus, the State consists of a group [or groups] of individuals who work according to certain rules within that particular institutional framework.

In short, the State is not a physical entity that exists independently. It is an abstraction that has emerged many times and in many forms throughout human history. Sometimes it has been lauded as the ideal expression of Society, as in Plato's The Republic. At other times, it has been excoriated as a vicious parasite riding on the back of Society, as in Rothbard's For a New Liberty. With such division of attitudes, the challenge to political thinkers is to discern the commonality that exists between all states in order to derive a definition of 'the State'.

Historically, when political thinkers have attempted to discover the essential nature of 'the State' and whether it has legitimacy, they have looked to the origins of that institution for answers. In general, there are four basic and somewhat overlapping theories of how the State originated. Each theory carries different implications for the State's relationship to Society. The first theory is a supernatural one which claims that the State, or at least a certain ruler, is in place through the will of God. This theory results in theocracy and the Divine Right of Kings. According to it, the members of Society -- who are presumably placed by God in that role as well -- owe some level of allegiance to even an abusive State.

The second theory attempts to ground the State in more naturalistic terms. It claims that the State -- like the family -- is an almost spontaneous institution that naturally evolves from the act of community. Because individuals and their property require protection, an overriding institution naturally evolves to act as a policeman and a final arbiter of disputes. According to this theory, no hard line necessarily distinguishes the State from Society, which are engaged in a co-operative venture.

The third and fourth theories are ones of conflict. The third one claims that the State emerges due to internal warfare within the Society. Karl Marx popularized this view by analyzing the State as an agency of class warfare by which the capitalists controlled the workers. For Marx and his belief in inevitable class conflict, the State is an expression and protector of one segment of Society at the expense of another segment.(3)

The fourth theory looks to external conflicts and maintains that the State arose as the result of one tribe conquering another tribe.

Within classical liberalism, two theories of the origin of the State have struggled for domination: the naturalistic theory by which the State evolves from Society; and, the external conflict one by which the State may be considered to be a continuing act of war committed against Society by a separate group. The former is called the consent theory of the State. The latter is known as the conquest theory of the State. These are not merely historical suppositions. They are analytical approaches intended to call into question or to confirm whether the State can ever claim legitimacy. If the State in its very genesis requires the mass violation of human rights, it becomes far more difficult to ethically justify the institution than if it arose from mass agreement.

Thus, the following discussion deals not only on the his torical origin of the State, but also touches on its possible grounding in ethics.

The Consent Theory of the State

John Locke's The Two Treatises on Government is a pivotal document in the history of individualism.(4) In his Second Treatise, as Karen Vaugh observed, "Locke argues the case of individual natural rights, limited government depending on the consent of the governed, separation of powers within government, and most radically, the right of people within society to depose rulers who fail to uphold their end of the social contract."(5) The Second Treatise, from which both the French and America revolutions drew heavily, remains the touchstone for consent theory within the classical liberal tradition.

Locke believed that God had given the world in common to men for their use and he justified private property -- the appropriation of a common good for personal use -- by arguing that each man had an ownership claim to his or her own person. Based on this self-ownership, Locke argued,

"The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joyned to it something that is his own, and thereby makes it his property."(6)

The need to protect the property of 'life, liberty, and estate' led men to form a Government.(7) In other words, the institution arose as a shield against the conflicts that naturally occur when individuals accumulate property in a world of scarce resources. It arose through an explicit contract by which men relinquished to the State the right to adjudicate their own disputes. For its part of the social contract, the State or Government pledged to rule in order to secure men's claim to their property. For example, it was obliged to regulate property so as to safeguard it, e.g. through inheritance laws. Thus, the existence of private property could be said to be a cause of the Lockean State, or Government.

In the Second Treatise, Locke attempted to counter some of the arguments of the 17th century English philosopher Thomas Hobbes who also believed that the State, or commonwealth, arose through what he called 'mutual covenants' aimed at subduing man's natural tendency toward constant warfare. In particular, Locke rejected the Hobbesian contention that the initial consent to the State rendered by free individuals could bind their children and succeeding generations to that State. Instead, Locke developed a doctrine of tacit consent which bound even those people who did not explicitly consent to Government. In essence, each person who lived within a community and accepted its benefits was said to tacitly agree to the rules by which that community was governed.

Withdrawal of such tactic consent was always possible. A man could relinquish his property (his 'estate', not the property that resided in his life and liberty) and leave the community, thus putting himself back into a state of nature in relationship to it. However, as long as you occupy the land over which the Government has jurisdiction, you are tacitly accepting that jurisdiction. After all, Locke would argue, the 'good title' of any property you have inherited comes from the Government who has protected that wealth and regulated its just transfer to you. A similar argument could be made concerning wealth accumulated through contract: that is, your contracts had validity only because of the regulatory benefits provided by the Government.

In essence, Locke believed that a civilized and satisfying Society could not exist without Government to adjudicate con- flicts and to provide a legal context for property. Only when Government ceased to fulfill its part of the social contract were the citizenry justified in rebelling against it. Otherwise, Government (or the State) and Society were engaged in a co- operative endeavor.

Whether or not Locke actually believed there had ever been an original Government formed with the explicit consent of every- one over which it claimed jurisdiction is a matter of debate. Clearly Locke used the concept of such a contract as an analytical tool to explore the circumstances under which civil government could be justified. His theory can be critiqued or embraced on either level.

The Conquest Theory of the State

The conquest theory of the state stands in sharp contrast to the preceding Lockean model, and attempts to ground the primitive State in historical fact rather than political conjecture. A common expression of the conquest theory runs as follows: originally there were agricultural tribes who settled in certain areas where they became dependent upon the land. Roving nomads, who were perhaps herders, waged war on the more sedentary tribes for the obvious economic benefits to be gained. At first, the nomads killed and pillaged, but they discovered it was in their long term economic interests to enslave and exact tribute from the conquered populace instead. This is used as the basic model for how the institution of the State arose.

Thus, the more extreme versions of conquest theory conclude that all states -- that is, the State -- originate in conflict, not consent. More moderate forms of the theory argue that warfare plays a defining role in the formation and continued sustenance of the State. But war is not the only factor. It is a necessary but not a sufficient condition for the emergence of the State. Other conditions -- such as the inability of a conquered people to migrate -- must be specified.

Albert Jay Nock in his book Our Enemy the State defended the conquest theory of the state on an historical basis. Murray Rothbard in For A New Liberty advanced a modified version of the theory which conceded that some states may have evolved in a different manner, but contended that the conquest theory was the typical genesis of the State. Thus, down to its foundation, the State was never meant to preserve justice, property rights or the peace. The motive behind the State was and is the desire to establish sovereignty and achieve wealth through the use of force. Any benefits that a state provides are tangential and non-essential to its nature.

In arguing for the conquest theory, both Nock and Rothbard relied heavily upon Franz Oppenheimer. Oppenheimer argued for what he called 'an economic impulse in man'. He believed that material need was the prime motivator of human beings and that progress is produced by economic causes, not by political ones. As mentioned earlier, Oppenheimer's classic The State sketches the two basic means by which men satisfy their material needs: through their own labor or through expropriating the labor of others. The former is the economic means: the latter is the political means.

Oppenheimer discovered the origin of the State within the 'economic impulse of man' -- or, rather, within those men who wished to satisfy this impulse through the political means. He posited six stages through which a conquering group typically passes in order to become a State. At first, a warlike group raids and plunders another vulnerable one. Second, the victimized group ceases to actively resist. In response, the raiders now merely plunder the surplus, leaving their victims alive and with enough food to ensure the production of future plunder. Eventually, the two groups come to acknowledge mutual interests, such as protecting the crops from a third tribe. Third, the victims offer tribute to the raiders, eliminating the need for violence. Fourth, the two groups merge territorially. Fifth, the warlike group assumes the right to arbitrate disputes.

Oppenheimer described the last stage in which both groups develop the 'habit of rule':

"The two groups, separated to begin with, and then united on one territory, are at first merely laid alongside one another, then are scattered through one another...soon the bonds of relations united the upper and lower strata."(57)

Thus the State that originated from external conquest evolves into one of continuing internal conquest by which one group -- or a coalition of groups -- use the political means to attain wealth and power at the expense of those who actually labor. The State arises and maintains itself as the enemy of Society.

Although the conquest theory has much greater historical validity than the consent theory, debate continues as to what implication the origin of the State has upon the legitimacy of current states.


In its broadest sense, classical liberalism maintains the right of individuals to act in such a manner as to maintain their own lives and happiness. A main focus of classical liberalism has been its opposition to the State or Government controlling people's peaceful activities. Indeed, libertarian theory -- which may be viewed as a sub-category or fellow-traveler to classical liberalism -- views the history of political thought as a struggle between individual rights and government control. Of course, consent by the individual eliminates this struggle.

The question becomes: what does the State do with a peaceful individual who rejects its jurisdictional claims over his property and person? Locke would tell the individual to leave. Others maintain that to grant the State such territorial jurisdiction is actually to grant it ownership of the land. The individual whose name may be on a government deed is merely getting free rent in exchange for obedience. They question how the State can acquire such a monopoly jurisdiction simply in return for providing a service, even the important service of protecting property. After all, a doctor who saves your life does not acquire a continuing and monopoly claim over your body.

The answers may well lie in the correct phrasing of the questions. In turn, a large part of proper phrasing lies in using words such as the State and Society in a clearly defined and precise manner.


(1) Franz Oppenheimer, The State. New York: Free Life Editions, 1975. All subsequent quotations from Oppenheimer refer to this edition.

(2) As quoted in C. Hamilton's introduction to Oppenheimer's The State. New York: Free Life Editions, 1975, p. xii.

(3) Oppenheimer's position may resemble Marx's but there are at least two key differences. 1. He contends that, however the State may evolve, its origin is to be found in external conflict, not an internal one. 2. He defines the two classes as entirely sepa- rate entities -- those who use the political means (the State) and those who use the economic means (Society), thus removing the inevitability of conflict within Society. The State is an imposed cost upon Society, not an inevitable result of internal conflict.

(4) The exact title varies slightly depending on the edition, e.g. Two Treatises of Government (1960, ed. Peter Laslett). I have used the title rendered by the acclaimed Eleventh Edition of The Encyclopaedia Britannica. Locke's First Treatise is widely ignored. This work was a response to Sir Robert Filmer's Patria- chia, a defense of the divine right of kings.

(5) Karen I. Vaugh, "John Locke's Theory of Property: Problems of Interpretation" in Literature of Liberty, Vol.III, No.1,Spring 1980, pg. 5.

(6) Peter Laslett, ed. Two Treatises of Government. Cambridge: Cambridge University Press, 1960, p.305-306. Locke's theory of self-ownership was conditioned by God's prior and superior claim to a man's body. Thus, he rejected the right of suicide as being an usurpation of God's property.

(7) By the term Government, Locke seems to mean a State consistent with Machan's definition thereof. Although Locke requires each generation to 'sign on', the institution he calls a Government retains a continuing territorial to the land which non-signatories must leave.

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