The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression

by Stephan Kinsella on December 19, 2022

Related:

On the Danger of Metaphors in Scientific Discourse, StephanKinsella.com (June 12, 2011)
Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors
“Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors”
“Hume on Intellectual Property and the Problematic “Labor” Metaphor”; “Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading“
Intellectual Freedom and Learning Versus Patent and Copyright, text at note 21
Kinsella, “KOL044 | ‘Correcting some Common Libertarian Misconceptions’ (PFS 2011),” Kinsella on Liberty Podcast (May 2, 2013), at slide 7
idem, “KOL049 | ‘Libertarian Controversies Lecture 5’ (Mises Academy, 2011),” Kinsella on Liberty Podcast (May 4, 2013), at slide 15
idem, “KOL092 | Triple-V: Voluntary Virtues Vodcast, with Michael Shanklin: Can You Trade Something You Don’t Own?,” Kinsella on Liberty Podcast (Oct. 30, 2013)
idem, “The ‘If you own something, that implies that you can sell it; if you sell something, that implies you must own it first’ Fallacies,” StephanKinsella.com (June 1, 2018)

State vs. Government

If government means the state, it’s criminal; but it clearly means something different: the governing institutions, law and order. The state has coopted government like it has coopted roads and transportation, money, education. But just as roads are not inherently statist, neither is government. We anarcho-libertarians do not oppose law and order and the institutions of “governance”; just state control thereof. We oppose our enemy, the state.

“Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), n.2:

In this book, I sometimes use the term government to refer to what should more precisely be referred to as the state, although, as I have argued elsewhere, to be precise, government (or the institutions of governance) is conceptually distinct from the state. The state commandeers various natural and private institutions in society, such as communication, transportation, defense, education, healthcare, and law and order (institutions of governance), and over time the populace associates these institutions with the state. But just as libertarians are only against state-provided roads and education, but not against roads and education, we are not against “government,” meaning institutions or law and order. We are against the state. We anarchist libertarians are not for chaos and do not think law is impossible without the state; indeed, we think true, just law is only really possible without the state. Thus we anarchist libertarians do not oppose law and order, or even “government,” properly understood. Nonetheless, I sometimes use “government” in this book in the conventional sense to more or less mean the state, to avoid tedium. See, on this, “Libertarianism After Fifty Years: What Have We Learned?” (ch. 25); Kinsella, “The Nature of the State and Why Libertarians Hate It,” StephanKinsella.com (May 3, 2010) ….

“Libertarianism After Fifty Years: What Have We Learned?”, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023):

Let me give some examples of metaphors or uncareful use of terms, things that can lead to equivocation by our opponents, things that can lead to confusion when we try to analyze difficult issues.

So one is, for example, most libertarians have always been against what we call “public schools.” And in recent years, maybe in the last decade or two, I’ve heard libertarians say, they’ve used the term “government schools,” because they want to make clear, “I’m against government schools.” They’re trying to call to the attention of the proponents of “public” schools that they’re really in favor of the government being in charge of educating people.

Well, even the word “government,” in my view, is a dangerous word to use. I use it from time to time but I increasingly try to use the word “state” to make it clear that I’m against the state because the state has a definition. It’s a monopoly in a geographic area over the provision of law, justice, and force.^[31] The word government has ambiguous meanings. And your opponent—either a minarchist, which we can call a mini-statist, or a regular statist—by the word government, they mean the governing institutions in society. And they also use it as an equivalent to the state because they believe the state is necessary for these governing institutions. So they are smuggling in their presuppositions, a type of question-begging.

So if you say, as an anarchist, I’m against the government (meaning: against the state), they will take you to mean you’re against law and order. So if they ask you, “Well, do you believe in law?”

You say, “Yes.”

Then they say, “Well, then you believe in government.”

And I say, “Well, I believe in government as law and order.”

And then they say, “Well, then you must believe in the state.”

You see there’s that trick there. So we have to stay focused on being opposed to the state, defined in a certain way.

^[31] Writes Hoppe:

Let me begin with the definition of a state. What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent’s power to tax: to unilaterally determine the price that justice seekers must pay for his services.

Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position.

Hans-Hermann Hoppe, “Reflections on the Origin and the Stability of the State,” LewRockwell.com (June 23, 2008; https://archive.lewrockwell.com/hoppe/hoppe18.html), quoted in in Kinsella, “The Nature of the State and Why Libertarians Hate It,” StephanKinsella.com (May 3, 2010). Hoppe’s article was based on his 2008 speech, available at Hoppe, “PFP020 | Hans-Hermann Hoppe, Reflections on the Origin of the State (PFS 2008),” Property and Freedom Podcast (Dec. 24, 2021; https://propertyandfreedom.org/pfp).

As I pointed out over 20 years ago (7/14/2005), in External Posts: Sciabarra, Horwitz; definition of Socialism; the “case” for anarchy:

It is not “government” per se that is the problem, as Tibor Machan has noted. We can say that a free society with no states has “government” but no states. The question is whether there is a state. A state is an entity that both taxes people and forcibly outlaws competition. There is no reason to say that private justice agencies would have these characteristics.

Hans-Hermann Hoppe, “The Role of Intellectuals and Anti-intellectual Intellectuals,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021):

Let me begin with the definition of a state. What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent’s power to tax: to unilaterally determine the price that justice seekers must pay for his services.

Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position. ¹

Hoppe, “Reflections on State and War,” LewRockwell.com (Dec. 2, 2006): ²

Conventionally, the state is defined as an agency with two unique characteristics. First, it is a compulsory territorial monopolist of ultimate decision-making (jurisdiction). That is, it is the ultimate arbiter in every case of conflict, including conflicts involving itself. Second, the state is a territorial monopolist of taxation. That is, it is an agency that unilaterally fixes the price citizens must pay for its provision of law and order.

Predictably, if one can only appeal to the state for justice, justice will be perverted in favor of the state. Instead of resolving conflict, a monopolist of ultimate decision-making will provoke conflict in order to settle it to his own advantage. Worse, while the quality of justice will fall under monopolistic auspices, its price will rise. Motivated like everyone else by self-interest but equipped with the power to tax, the state agents’ goal is always the same: to maximize income and minimize productive effort.

Nock, Our Enemy, The State:

It may…be easily seen how great the difference is between the institution of government, as understood by [Thomas] Paine and the Declaration of Independence, and the institution of the State … The nature and intention of government … are social. Based on the idea of natural rights, government secures those rights to the individual by strictly negative intervention, making justice costless and easy of access; and beyond that it does not go. The State, on the other hand, both in its genesis and by it primary intention, is purely anti-social. It is not based on the idea of natural rights, but on the idea that the individual has no rights except those that the State may provisionally grant him. [emphasis added]

But see: Nicholas Dykes, “The Facts of Reality: Logic and History in Objectivist Debates about Government,” J. Ayn Rand Stud. 7, no. 1 (Fall 2005): 79–140, p. 79:

in this essay, rightly or wrongly, the words ‘state’ and ‘government’ are used interchangeably to refer to any geographically-defined monopoly on the use of force—including ‘limited government’ or ‘minarchy.’ ‘Anarchism’ refers to libertarian anarchism, the philosophical advocacy of a future society without such a monopoly.

Dykes goes on (pp. 132–133):

A devoted fan of Ayn Rand since 1963, I am sympathetic to those who uphold minarchy or limited government. For thirty years, I did the same. But when in 1992 enforced early retirement gave me the leisure to read more widely, and after a friend, the British libertarian Kevin McFarlane, suggested I should read Bruce Benson’s The Enterprise of Law, I suddenly felt one day like Keats’s Cortez, staring out over an unknown horizon with the ‘wild surmise’ that social life without government might be possible. In the years since, everything I have read has made that surmise seem more and more like the true facts of reality, “a state of affairs that is and works whether or not anybody recognises it” (Mises 1944, 113).

Sechrest (1999, 87) has noted psychological elements in the anarchy/minarchy debate. This seems eminently correct, for children are usually raised to revere their country’s history and its form of government. Thus most Britons are loyal to their monarchy and most Americans unquestioningly support the Uncle Sam they are accustomed to. As Nock ([1935] 1950, 44) observed wryly: “There appears to be a curious difficulty about exercising reflective thought upon the actual nature of an institution into which one was born and one’s ancestors were born.” It may be that this ‘inheritance factor’—unconscious, and therefore impervious to reason—has always been the greatest obstacle to the spread of ideas.” Citing Ludwig von Mises, Bureaucracy (New Haven: Yale University, 1944); Larry Sechrest, “Rand, anarchy, and taxes,” J. Aуn Rand Stud. 1, no. 1 (Fall 1999): 87–105; Nock, Our Enemy, The State. ))

This comment about psychology annoyed Machan. See Tibor Machan, “Reconciling Anarchism and Minarchism,” in Roderick Long and Tibor Machan, Anarchism/Minarchism: Is a Government Part of a Free Country? (2008), n. 10:

One cannot do Dykes’ piece justice with any kind of brief reply. But his equivocation is a serious flaw in it. The paper also ends on a dubious note, from a scholarly standpoint, when it suggests that those defending minarchism suffer emotional or psychological problems (like having an affinity for paternalism from their childhood). Such psychologising is very bad form—how can one defend oneself against it when there is no proof or evidence for the thing other than its having been suggested in a respectable forum?

Note that Machan flips back and forth on the state and government, without justifying equating these terms. E.g. he talks about government even after quoting Weber’s definition of state:

Government has been rejected by anarcho-libertarians on grounds that its very nature involves fundamental injustices (such as taxation or exclusive legal jurisdiction).13 Legal services consist of enforcing laws, and laws are supposed to uphold justice. If, as libertarians hold, justice consists of respecting and protecting individual rights, then legal services involve the adjudication of disputes about rights violations, overseeing conviction of criminals, and providing for some of the police protection and military defense for people who live within the relevant jurisdiction, all in the effort to give freely consented-to protection to these rights.

Rights are the objective criteria by which just adjudication is to be conducted, so far, at least, as libertarians understand them. This, as they tell it, fulfills the requirement of a civilised legal system whereby the rule of law rather than of (the will of) human beings (as rulers) is followed. So government is criticised by libertarian anarchists because it is considered impossible for it to pursue and achieve justice without also breaching it.

If the provision of legal services is to be just, the argument goes, not only must government enjoy the full consent of the governed (which may be explicit or, some have argued, implicit—based not only on overt but tacit agreement implied by one’s actions14) but refrain from establishing a monopoly in the provisions of its services. This second reason for why government is coercive by its very nature is often explained by reference to Max Weber’s definition of it: “A state is defined by the specific means peculiar to it, the use of physical force. The state is a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory. Politics, then, means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.”15 In short, government is supposedly an imposed monopoly.

13 Rothbard discusses the issue in The Ethics of Liberty (Atlantic-Highlands, NJ: Humanities Press, 1982), pp. 162-63. For his definition, see p. 171, where he says, “The State may therefore be defined as that organisation which possesses either or both (in actual fact, almost always both) of the following characteristics: (a) it acquires its revenue by physical coercion (taxation); and (b) it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area.”

15 Max Weber, Economy and Society: An Outline of Interpretive Sociology (1978), p. 56. [See also Kinsella, The Power to Tax and the Power to Outlaw Competition Imply Each Other.]

Rothbard on the state: Murray N. Rothbard, “The Nature of the State,” The Ethics of Liberty (Atlantic-Highlands, NJ: Humanities Press, 1982), p. 172:

The State may therefore be defined as that organisation which possesses either or both (in actual fact, almost always both) of the following characteristics: (a) it acquires its revenue by physical coercion (taxation); and (b) it achieves a compulsory monopoly of force and of ultimate decision-making power over a given territorial area. ³

see also France, at an Impasse, Heads Toward Another Government Collapse, NY Times 2025 Sep 8: using “government” not to refer to the French state but to its “government,” which Americans refer to as the “administration” or something like that. Or Congress splinters into unlikely factions over looming government shutdown, where (a) “government shutdown” does not refer to a shutdown of the entire (federal, or general) government, ie. not a “shutdown,” really, and (b) where “government” here clearly means something other than the US state.

See also this Grok analysis:

My queries:

Consult the attached [Shael Herman, The Louisiana Civil Code: A European Legacy for the United States (Louisiana Bar Foundation, 1993)] and Legislative Positivism and Rationalism in the Louisiana and French Civil Codes, Samuel Read on Legal Positivism and Capitalism in 1829, Logical and Legal Positivism, On the Role of Commentators and Codes and the Oracles of the Law, Epstein on Roman Law, Legislation and the Discovery of Law in a Free Society, Another Problem with Legislation: James Carter v. the Field Codes, when was the first modern civil code enacted. Was this about the same time as the beginning of the domination of legislative positivism? Is it fair to say that until the beginning of the 20th century, most people would be aware statutes and legislation as one source of law but were generally aware also of law as developed in the English or Anglo-American common law and somewhat compatible with common notions of justice, common sense, natural law, intuition, and custom, and so on; and that in the 1800s, with the rise of legislated European civil codes such as the French Code Napoleon, even though these were legislated they were mostly codifications of previous customary and Roman law, so private law was still roughly identified commonly as related to justice, but that starting in the early 1930s or so with the rise of statutes, regulations, legislation, and the administrative state, gradually more and more people came to think of law as written law synonymous with statutes and legislation, with decrees and commmands of the state, so that nowadays the average person thinks of law as statutory law and is only dimly aware, at best, of the connection with ancient evolved Roman and common law.Also, is it accurate to say that modern civil codes are based in large part on the Roman Law but also partly on customary European law that developed in the centuries after the fall of the Roman Empire and before the rediscovery of the Justinian Codes?

Combined Summary of Previous Responses

This response synthesizes and reiterates the key elements from our prior discussions on the historical development of modern civil codes, their relationship to legislative positivism, evolving perceptions of law, the foundations of civil codes in Roman and customary law, and the persistence of natural law influences as illustrated in the 1839 Louisiana case Reynolds v. Swain. The synthesis draws directly from the provided document by Shael Herman (“The Louisiana Civil Code: A European Legacy for the United States,” 1993) and related sources (e.g., Stephan Kinsella’s analyses on positivism and Roman law), emphasizing Louisiana’s unique civil law tradition as a bridge between European antecedents and American legal experience.

1. The First Modern Civil Code and Its Link to Legislative Positivism

The first modern civil code is widely recognized as the Code Napoléon (French Civil Code), enacted in 1804 under Napoleon Bonaparte. This code represented a revolutionary shift: unlike earlier compilations (e.g., the Code of Hammurabi or medieval “Barbarian” codes), it was a comprehensive, logically organized system of general principles derived from Roman law, designed for deduction and application by analogy. It centralized law under legislative authority, embodying Enlightenment ideals of rationalism, social unification, and governmental centralization (as detailed in Herman’s document, pages 5–7, 11–12, 16–18).

This enactment coincided with the rise of legislative positivism—a philosophy viewing law primarily as the product of sovereign (state) commands, rather than natural, customary, or divine sources. Positivism gained traction in the late 18th and early 19th centuries amid the French Revolution’s secular reforms, subordinating custom and judicial discretion to statutes. The Code Napoléon exemplified this by establishing legislation as supreme, though it retained some ties to natural reason. In the U.S., Louisiana’s Digest of 1808 (revised as the Civil Code of 1825) mirrored this, drawing heavily from French, Spanish, and Roman sources while declaring legislation and custom as primary sources (Articles 1–3). However, Louisiana’s version allowed equity and natural law as gap-fillers when statutes were silent (Article 4), reflecting a milder positivism. Critiques like Samuel Read’s 1829 work and James Carter’s 1884 opposition to codification highlight how positivism dominated by the mid-19th century, shifting law from “discovered” (organic) to “made” (state-decreed), though debates persisted between natural lawyers and positivists.

2. Historical Perceptions of Law and the Shift Toward Statutory Dominance

Until the early 20th century, most people viewed statutes as one source of law alongside others, such as English/Anglo-American common law (evolved through precedents), natural law (rooted in reason, justice, and morality), common sense, intuition, and custom. Law was seen as compatible with notions of equity and societal norms, “discovered” through experience rather than solely invented by the state (echoing Ferdinand Stone’s dichotomy in Herman’s document, pages 6–7, where civil lawyers use codes as blueprints, while common lawyers rely on case-by-case solutions).

In the 1800s, the rise of legislated European civil codes like the Code Napoléon changed this subtly: these were mostly codifications of prior customary and Roman law, preserving a link to justice. Private law (e.g., contracts, property) remained tied to evolved norms, not arbitrary commands—Roman principles from Justinian’s Corpus Juris Civilis (529–534 AD) blended with post-Roman customs (e.g., French coutumes from the 15th–16th centuries). Louisiana’s code, as a “European artifact” (Herman, pages 1–3, 5), exemplified this hybrid, providing intellectual bridges to global civil law traditions (e.g., Quebec, Latin America).

However, starting in the early 20th century—accelerating in the 1930s with the administrative state’s expansion (e.g., U.S. New Deal regulations)—perceptions shifted. Statutes, regulations, and decrees proliferated, leading people to equate “law” with written, state-issued commands. Today, the average person sees law as statutory, with only dim awareness of its roots in ancient Roman/common law evolutions. This evolution wasn’t uniform; civil systems like Louisiana retained stronger ties to justice-oriented codes, while common law areas faced more tension from bureaucratic growth.

3. Foundations of Modern Civil Codes in Roman and Customary Law

Modern civil codes are indeed based largely on Roman law but also incorporate customary European law from the centuries after the Roman Empire’s fall (476 AD) until the rediscovery of Justinian’s texts around 1070 AD. Roman elements—via Justinian’s compilations—provide core institutions like property, obligations, family law, and delicts (e.g., “usufruct,” “servitudes,” “delictual liability” in Herman’s document, pages 9–11, 37–55). Post-Roman customary law, including “Barbarian” codes (e.g., Visigothic, blending Roman remnants with Germanic tribal practices), filled gaps and adapted to feudal realities. Medieval glossators and commentators (11th–15th centuries) synthesized this into the ius commune, influencing Enlightenment jurists like Domat and Pothier, who shaped the Code Napoléon. Louisiana’s code imported this hybrid: Roman foundations through Spanish/French colonial influences, plus local customs, making it a synthesis rather than a pure Roman revival (Herman, pages 27–32; Kinsella on Roman law and commentators).

4. Persistence of Natural Law in Codified Systems: The Case of Reynolds v. Swain (1839)

Even after civil codes enshrined legislative supremacy, links to natural law persisted in some systems, as shown in Reynolds v. Swain, 13 La. 193 (1839). This Louisiana Supreme Court case involved a redhibitory action over a defective enslaved person’s sale, where the buyer (Reynolds) sued the seller (Swain) for rescission due to a hidden vice (consumption). The suit exceeded the one-year prescriptive period under Article 2512 of the 1825 Louisiana Civil Code, leading the trial court to dismiss it based on positive (enacted) law.

On appeal, the Supreme Court reversed, finding fraud by Swain interrupted prescription. Crucially, the court’s reasoning invoked natural law and equity as foundational sources when codes were silent or unjust. Justice Martin emphasized that Louisiana’s civil law drew from Romanist traditions, where “unwritten law” (natural equity, reason) supplemented statutes. Citing Article 21 of the modern Louisiana Civil Code (echoing the 1825 version’s Article 4), the court held that judges must apply equity, natural law, and received usages in gaps, preventing rigid positivism from overriding justice. This rejected a strict positivist view (law as only what is enacted), affirming that fraud “shocks the conscience” under natural principles. The case illustrates how Louisiana’s mixed jurisdiction retained natural law as a “gap-filler,” balancing legislative dominance with moral intuition—contrasting with purer positivist systems like France’s, where custom could not abrogate legislation (Herman, pages 17–19; Kinsella on logical/legal positivism).

Overall Concluding Summary

In summary, the modern civil code era began with the 1804 Code Napoléon, marking the ascent of legislative positivism while codifying Roman and post-Roman customary law into rational, justice-oriented frameworks. Louisiana’s 1808/1825 code adapted this European legacy, creating a unique U.S. jurisdiction that bridges continental traditions with American pragmatism (as Herman’s book portrays it as a “social blueprint” from cradle to grave, pages 1–3, 7). Historical perceptions of law as multifaceted (tied to natural justice and custom) gave way to statutory dominance by the mid-20th century, yet cases like Reynolds v. Swain demonstrate natural law’s enduring role in filling statutory gaps and ensuring equity. This evolution underscores law’s dynamic nature: from organic discovery to state-made commands, with civil codes like Louisiana’s preserving intellectual depth and global relevance amid positivist shifts. As Herman notes (pages 2–3), appreciating this “difference” fosters self-knowledge and cross-cultural legal insights in an increasingly interconnected world.

***

On Government Schools

“Libertarianism After Fifty Years: What Have We Learned?”, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023):

Let me give some examples of metaphors or uncareful use of terms, things that can lead to equivocation by our opponents, things that can lead to confusion when we try to analyze difficult issues.

So one is, for example, most libertarians have always been against what we call “public schools.” And in recent years, maybe in the last decade or two, I’ve heard libertarians say, they’ve used the term “government schools,” because they want to make clear, “I’m against government schools.” They’re trying to call to the attention of the proponents of “public” schools that they’re really in favor of the government being in charge of educating people. [But see above re state vs. government]

Originally published in Hans-Hermann Hoppe, “Reflections on the Origin and the Stability of the State,” LewRockwell.com (June 23, 2008), based on Hoppe, “PFP020 | Hans-Hermann Hoppe, Reflections on the Origin of the State (PFS 2008),” Property and Freedom Podcast (Dec. 24, 2021); also quoted in Stephan Kinsella, “Libertarianism After Fifty Years: What Have We Learned?”, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), in the section “Danger of Unclear Language and Metaphors”; and in Kinsella, “The Nature of the State and Why Libertarians Hate It,” StephanKinsella.com (May 3, 2010). [↩]
Also in Hans-Hermann Hoppe, “The Idea of a Private Law Society,” Mises Daily (July 28, 2006). [↩]
See also Kinsella, The Power to Tax and the Power to Outlaw Competition Imply Each Other. [↩]