Strategic and Tactical Totalization in the Totalitarian Epoch

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 briefly 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 segregationist 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 totalization of legal norms can and does occur in liberal democracies, though with substantially different implications than in totalitarian regimes.