Libertarianism, Minarchists, International Law, and Eminent Domain

[StephanKinsella.com cross-post]

Principled libertarians are anti-state because they favor property rights and oppose aggression.¹ This does not mean respect for rights, or the non-aggression principled is our “only,” or even the “highest,” “value”;² nor that we believe in “absolute” property rights, whatever that means.³ It only means that we have a principled case for property rights and we oppose aggression; we recognize that it is impossible to justify aggression.⁴

And for these reasons we oppose both private crime or aggression, and institutionalized aggression by the state, including taxation and other forms of institutionalized theft by the state—such as eminent domain, conscription, intellectual property law,⁵ and so on (as well as many other types of aggression).⁶

But minarchists really have no principled objection to these things. Ayn Rand grudgingly said taxation—with lots of caveats, e.g. she wrote “Any program of voluntary government financing is the last, not the first, step on the road to a free society—the last, not the first, reform to advocate”⁷—but honest Objectivists admit that there must be a state and it must have the power to tax.⁸

Not only that, they also favor eminent domain.⁹ Tibor Machan ridiculously argued the state must have the power of eminent domain, in order to ensure that it had enough land for essential government buildings.¹⁰ I don’t guess it occurred to ole Tibor that if you can tax you can just use the money to buy the land you need. (Which is precisely why The Power to Tax and the Power to Outlaw Competition Imply Each Other.)

Richard Epstein in fact bases his entire theory of the semi-minimal state on the power to engage in takings of property to solve the market failures of holdout and free-rider problems.¹¹ The market failure argument is very pernicious—it is behind intellectual property law, antitrust law,¹² the power of eminent domain, and so on.¹³ In terms of damaging intellectual errors, the notions of market failure is right up there with the twin errors of the labor theory of property and the labor theory of value and Locke’s “creationism.”¹⁴

And they can’t even say, well, but we want a small government—one in which taxes and eminent domain are minimized. Oh, no: whatever it needs to take from us, it must—you see, “government” (they use this word disingenuously to attempt to justify the state) is “necessary.”⁷ E.g., see these remarks from Objectivists:

“Limited government” means a government restricted to certain purposes, namely, the defense of individual rights; “small government” means a government that absorbs a small percentage of the gross national product. If a country has been invaded, its government might absorb 50 percent or more of the nation’s product to mount a defense—and yet remain a “limited government” in the relevant sense. Conversely, a government that abandons its military and police missions might spend very little of the national output, but if it spends that little on health, education, and welfare, it is not a “limited government.” [Roger Donway]

We who wish to defend liberty need to dispense with the shibboleth of “big government.” Size is not an essential aspect of government’s propriety or impropriety. The proper measure of government concerns its function. A government—or any aspect thereof—is good or bad depending on whether it is directed toward the proper end of government: the protection of individual rights by means of banning physical force from social relationships. Insofar as size matters at all, its significance lies in whether a given government or department or program is the optimal size for the ultimate purpose of protecting rights. [Eric Daniels]¹⁵

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1. The Nature of the State and Why Libertarians Hate It, StephanKinsella.com (May 3, 2010). [↩]
2. Kinsella, The “Liberty Is Your Only Value” Canard. [↩]
3. Kinsella, Dominiak & Wysocki, “Libertarianism, Defense of Property, and Absolute Rights”. [↩]
4. Kinsella,”What Libertarianism Is“and “What It Means To Be an Anarcho-Capitalist,” both in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
5. Intellectual Property versus Intellectual Property Rights. [↩]
6. See discussion of Rothbard’s typology of state interventions in Kinsella, KOL493 | Rothbard’s Greatest Hits: A Personal Mix Tape (Porto, Portugal); The Undeniable Morality of Capitalism, n.14; Intellectual Property Rights as Negative Servitudes; see Rothbard, Power and Market, in the chapter “Fundamentals of Intervention. [↩]
7. David Kelley on the Necessity of Government. [↩] [↩]
8. David Kelley on the Necessity of Government; The Power to Tax and the Power to Outlaw Competition Imply Each Other; Ayn Rand on Courts’ Subpoena Power and Compulsory Jury Duty (and Eminent Domain). [↩]
9. Ayn Rand on Courts’ Subpoena Power and Compulsory Jury Duty (and Eminent Domain). [↩]
10. Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant (the section “Anarchy/Minarchy; Eminent Domain”). [↩]
11. Richard Epstein’s Takings Theory of the State; Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views; Email to Richard Epstein: Tension Between Takings Framework and IP Views. [↩]
12. D.T. Armentano, Antitrust: The Case for Repeal; also Rothbard, Man, Economy, and State, with Power and Market, Scholar’s ed., 2nd ed. (Auburn, Ala.: Mises Institute, 2009), ch. 10; Hoppe, A Theory of Socialism and Capitalism (Laissez Faire Books, 2013), ch. 10; Kinsella, “Mises, Rothbard, Hoppe: An Indispensable Framework,” in Rothbard at 100: A Tribute and Assessment, Stephan Kinsella and Hans-Hermann Hoppe, eds. (Papinian Press and The Saif House, 2026), at n.35. [↩]
13. IP Law and “Market Failure”. [↩]
14. Kinsella, “Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action,” C4SIF.org (May 6, 2025); KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; Locke, Smith, Marx; the Labor Theory of Property and the Labor Theory of Value; and Rothbard, Gordon, and Intellectual Property; Isaiah Berlin on Locke, Karl Marx and the Labor Theory of Value; Rothbard on the Main Fallacy of our Time: Marx’s Labor Theory of Value. [↩]
15. See Ayn Rand Endorses Big Government. [↩]