Two of the most important concepts in any discussion of liberty are 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 seventeenth-century English classical liberal John Locke.

The German sociologist Franz Oppenheimer spearheaded an analysis of these key terms in his classic work, The State (1914). Oppenheimer defined the state as “that summation of privileges and dominating positions which are brought into being by extra-economic power.” He defined society as “the totality of concepts of all purely natural relations and institutions between man and man.”¹ He contrasted what he termed “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 uses the economic means—in other words, cooperation. Thus, for Oppenheimer, the state was the enemy of society.

The 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 titled Our Enemy, The State (1935). 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: 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 alone in distinguishing between government and the state: the novelist-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 of 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.”³

The contemporary philosopher Tibor Machan offers a definitional distinction between the state and government. The state is a jurisdictional claim to territorial sovereignty that persists 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 remains the same. Whether Reagan or Clinton occupies the White House, each man would represent the same state, which derives its legitimacy from the American Revolution and the ratification of the U.S. Constitution.

More radical voices within the individualist tradition, such as the economist Murray Rothbard, did not draw such a distinction between state and government. Or, if they viewed the two as technically separate entities, such individualist anarchists typically condemned both as invasive. They asked a haunting question: how can any agency or institution rightfully claim monopoly jurisdiction over a service to customers who do not wish to subscribe to it? Or, 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 state, society, and government are being defined. And in pursuing those definitions, one fact becomes quickly apparent. They are more than a matter of personal style, contrary to Oppenheimer: they involve deep ideological and historical disagreements with equally profound implications.

What Are State and Society?

The state is an abstraction, and care must be taken not to make something overly concrete of it. The same can be said for society. The analytic approach traditionally adopted by classical liberals is called methodological individualism. This approach claims that only individuals exist, and that institutions-such as the family, church, and state-all result from and can be analyzed in terms of individuals interacting with each other in particular ways. Society is the shorthand for the sum of all voluntary, or natural, institutions.

The state 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 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 (1978). With such a division of attitudes, the challenge to political thinkers is to discern the commonality that exists among 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 its 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 the theory, the members of society-who are presumably placed by God in their roles 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; they are engaged in a cooperative venture.

The third and fourth theories entail conflict. The third theory 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 control the workers. For Marx, the state is an expression and protector of one segment of society at the expense of another segment.⁴

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 dominance: the naturalistic, or consent, theory, by which the state evolves from society; and the conquest theory, by which the state may be considered to be a continuing act of war committed against society by a separate group. These are not merely historical suppositions. They are analytical approaches intended to question or confirm the state’s 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 historical origin of the state, but also touches on its possible grounding in ethics.

The Consent Theory of the State

John Locke’s Two Treatises of Government is a pivotal document in the history of individualism. In his Second Treatise, as Karen Vaughn 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 Locke’s work, from which both the French and American revolutions drew heavily, remains the touchstone for consent theory within the classical liberal tradition.

Locke believed that God had given the world to all men in common, 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. 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. Through an explicit social contract, men relinquished to the state the right to adjudicate their own disputes. For its part, the state pledged to rule in order to secure men’s claim to their property, for example, 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 seventeenth-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. Instead, Locke developed a doctrine of tacit consent, which bound even people who did not explicitly consent to government. In essence, each person who lived in a community and accepted its benefits was said to tacitly agree to the rules by which that community was governed.

Withdrawal of such tacit consent was always possible. A man could relinquish his “estate” and leave the community, thus putting himself back into a state of nature in relationship to it. However, as long as he occupied land over which the government has jurisdiction, he tacitly accepted that jurisdiction. After all, Locke would argue, the “good title” of any property a person inherited comes from the government that has protected that wealth and regulated its just transfer to you. A similar argument could be made concerning wealth accumulated through contract: the contract 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 conflicts and to provide a legal context for property. Only when government ceased to fulfill its part of the social contract was the citizenry justified in rebelling against it. Otherwise, government (or the state) and society were engaged in a cooperative endeavor.

Whether or not Locke actually believed there had ever been an original government formed with the explicit consent of everyone over which it claimed jurisdiction is a matter of debate. Clearly Locke used the 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 that 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. At first the nomads killed and pillaged, but they discovered it was in their long-term economic interest to enslave and exact tribute from the conquered populace instead.

That is the model for how the institution of the state arose. The more extreme versions of conquest theory conclude that all states 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.

In Our Enemy, The State, Nock defended the conquest theory of the state on an historical basis. 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 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 sketched the two basic means by which men satisfy their material needs: the economic means and the political means.

He discovered the origin of the state in those who wished to satisfy the economic 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 a vulnerable group. 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 wealth to plunder. Eventually, the two groups come to acknowledge mutual interests, such as protecting the crops from a third group. 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. . . . [S]oon the bonds of relations united the upper and lower strata.⁷

Thus the state, which originated from external conquest, evolves into an agency 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. In this view, 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 for the legitimacy of current states.

Getting the Terms Right

In its broadest sense, classical liberalism maintains the right of individuals to act 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 subcategory of 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 is on a government deed is merely getting zero rent in exchange for obedience. They question how the state can acquire such 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 answer to the question posed above, and related ones, may well lie in using words such as state and society in a clearly defined and precise manner.


Notes:

1. Franz Oppenheimer, The State (New York: Free Life Editions, 1975 [1914]), p. xxxiii.

2. As quoted in Charles Hamilton’s introduction to The State, p. xii.

3. Oppenheimer, p. xxxiii.

4. Oppenheimer’s position may resemble Marx’s but there are at least two key differences. First, Oppenheimer contended that, however the state may evolve, its origin is to be found in external conflict, not an internal one. Second, he defined the two classes as entirely separate 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.

5. Karen I. Vaughn, “John Locke’s Theory of Property: Problems of Interpretation” Literature of Liberty, Spring 1980, p. 5.

6. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), pp. 305–06.

7. Oppenheimer, p. 57.