Strategic and Tactical Totalization in the Totalitarian Epoch
| Author | Adam J MacLeod |
| Position | Associate Professor, Faulkner University, Thomas Goode Jones School of Law |
| Pages | 57-93 |
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0002
S T T
T E
Adam J MacLeod*
Faulkner University, USA
ABSTRACT
This article examines the totalization of private law by public authorities. It
compares and contrasts the fate of private law in totalitarian regimes with the
role of private law in contemporary, non-totalitarian liberal democracies. It
briey examines the Socialist jurisprudence of the former Soviet Union and
its treatment of private law. It offers an explanation why private law might
be inimical to the jurisprudence of the Soviet Union and totalitarian regimes
more generally. It next examines the totalization of law accomplished by se-
gregationist regimes in the mid-twentieth century, comparing and contrasting
those regimes with totalitarian regimes. Then it turns to examine instances
of “tactical totalization” in our own day. Examining totalization of law as a
jurisprudential, rather than political, phenomenon reveals how the totaliza-
tion of legal norms can and does occur in liberal democracies, though with
substantially different implications than in totalitarian regimes.
* Associate Professor, Faulkner University, Thomas Goode Jones School of Law. I wrote this paper
for, and presented an early version at, the public conference, The Totalitarian Epoch: The Fate of Law
and Liberty in the 20th Century and Beyond, at Princeton University in May 2014. I am grateful to
Robert P. George, Bradford Wilson, and the James Madison Program in American Ideals and Institu-
tions at Princeton University for the invitation. For helpful comments on the paper and/or conversa-
tions about the premises articulated in it, I am grateful to Daniel Blomberg, Paul Carrese, Michael
DeBoer, Michael DeBow, John Finnis, Matthew J. Franck, Joshua Fullman, John Garman, Jeffrey
Hammond, Jason Jewell, Daniel Mark, Robert McFarland, Allen Mendenhall, Michael Moreland,
Melissa Moschella, Tina Mufford, Thurston Reynolds, Gabriel Schoenfeld, Ned Swanner, and an
anonymous reviewer for the British Journal of American Legal Studies. Thanks also to my research
assistant, Caleb Rush, and to Anne Richardson Oakes and the editorial staff of the British Journal of
American Legal Studies for their excellent editorial work. The remaining errors are my own.
CONTENTS
I. I: S T T
T ..........................................................................59
II. T N P P L ..................60
A. Law as Exclusionary Reasons for Action .............................60
B. The Harms of Totalizing Equality .......................................64
C. The Possibility and Value of Plural Exclusionary Reasons ... 67
© 2015 Adam J MacLeod, licensee De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
58
5 Br. J. Am. Leg. Studies (2016)
III. S L T .........................................................69
IV. P L’ T T P ............ 71
V. T T ...........................................................76
VI. T T T................................................82
A. Totalization There ...............................................................82
B. Totalization Here ................................................................ 86
C. Totalization and the Loss of Private Ordering .....................91
VII. T P P ..............................................92
59
STRATEGIC AND TACTICAL TOTALIZATION IN THE TOTALITARIAN EPOCH
I. I: S T
T T
My task is to examine the reach of the totalitarian epoch and its implica-
tions for the rule of law. To approach this task, I consider totalitarianism not
as a political phenomenon but rather in its narrow jurisprudential aspect,
as the totalization by a central authority of the power to settle normative
questions that would otherwise be settled by plural authorities. Looking at
the matter this way reveals how totalization of legal norms can and does
occur in contemporary liberal democracies, though with substantially dif-
ferent implications than in totalitarian dictatorships. The reasons for totali-
tarianism’s antipathy toward private law are shared to a limited extent by
political authorities that are not violent or comprehensive in their control
of society, but instead exhibit characteristics of what Alexis de Tocqueville
termed, “soft despotism,”1 a tyranny that he predicted would be unlike the
Roman empire and other ancient tyrannies in that “it would be more wide-
spread and kinder; it would debase men without tormenting them.”2
Part II of this paper briey explains why it is important for un-deter-
mined and under-determined legal norms to be settled within plural do-
mains, especially domains of private ordering whenever possible (an argu-
ment I have made in book length elsewhere3). Because basic human goods
are incommensurable and afrmative responsibilities are open-ended, most
duties of abstention and all afrmative obligations are un- or under-deter-
mined by reason. The act of settling and specifying those duties and their
correlative liberties and rights is a reexive act, which has moral value for
the groups and communities that perform it, as it forms identity in the or-
der of the will. The liberty to deliberate, choose, and specify norms within
domains of private ordering is therefore an indispensable condition of de-
veloping one’s ability to realize the distinctly human good of practical rea-
sonableness.
This account of norms entails a perfectionist commitment to plural
domains of authority (and thus it is not libertarian or individualist), which
requires that those domains enjoy liberty (and thus it is not left-liberal or
statist). This is a contemporary defense of a classical, common-law sense
of liberty. This part also examines the harm caused by totalizing norms of
equality and non-discrimination. All law is discrimination, and the plurality
of goods and of private ordering requires that discrimination be allowed for
valid reasons and forbidden when the reasons are never to be considered
in the circumstances. Because norms of equality and non-discrimination
1 Alexis de Tocqueville, democrAcy in AmericA 803-09 (Gerald E. Bevan trans., Pen-
guin 2003) (1835).
2 Id. at 804.
3 AdAm J. mAcleod, ProPerTy And PrAcTicAl reAson (2015).
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