Strategic and Tactical Totalization in the Totalitarian Epoch
Article Category: Research Article
Online veröffentlicht: 26. Mai 2016
Seitenbereich: 57 - 93
DOI: https://doi.org/10.1515/bjals-2016-0002
© 2015 Adam J MacLeod, licensee De Gruyter Open
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
My task is to examine the reach of the totalitarian epoch and its implications 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 different implications than in totalitarian dictatorships. The reasons for totalitarianism’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,” A
Part II of this paper briefly explains why it is important for un-determined and under-determined legal norms to be settled within plural domains, especially domains of private ordering whenever possible (an argument I have made in book length elsewhere A
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 are under-determined in the abstract, they can seldom justifiably be used to eliminate norms and judgments of private law.
The clearest case of totalization of norms is of course to be found in a totalitarian regime. Among such regimes, the Soviets are interesting for having developed a jurisprudence to explain their totalizing ambitions. Soviet socialist jurisprudence thus serves as a focal case of the phenomenon examined here. To get a sense of the incompatibility between totalitarian jurisprudence and private law, Part III briefly examines the Socialist jurisprudence that was ascendant within the former Soviet Union and its proxies and allies, particularly its treatment of private law.
The study then generalizes a bit to consider whether totalitarian rule is necessarily hostile to private law and private ordering. Part IV of this article suggests why private law poses a threat to governing regimes that aspire to total control of the political community. It also explores how totalization of law can be viewed in its jurisprudential aspect, apart from the violent barbarities that totalitarian regimes committed in the twentieth century.
A general jurisprudence of totalization enables one to perceive totalization of legal norms in non-totalitarian societies. The latter parts of the paper examine attempts at totalization of law that have arisen within liberal democracies. Part V examines the use of tactical totalization of law within states that aspired in the twentieth century to attain complete segregation of races. Part VI points out some places where tactical totalization appears in liberal democracies and liberalizing societies today.
Part VII briefly considers the prospects for a principled pluralism that might resist totalization and promote human flourishing. Those prospects are not possible under a totalitarian regime but are available in a society that preserves the forms and institutions of liberty despite the tactical totalization of private law norms. Liberal democracies are quite radically different from totalitarian regimes in this sense (among others). This suggests that security for liberty can be regained in liberal democracies by reinvigorating the cultural practices and institutions of private ordering and private law-making.
Law in its broadest sense consists of authoritative settlements of practical inquiries for the purpose of directing the actions of agents who respond to reasons. Law can direct the choice and action of an individual as a reason for her action as she brings her choices and actions into line with determinate laws, understood as sources of obligation. H. L. A. H J
These settlements take the form of reasons of a particular kind, which is determinate and does not leave deliberation and choice open. With H. L. A. Hart we might examine these reasons in their form as rules, which supply authoritative, content-independent, and peremptory reasons for action. H. L. A. H 1 W G J
The idea common to all those accounts is that legal reasons foreclose further deliberation about the particular practical inquiry at issue. In their focal sense, determinate legal reasons block out of deliberation—forbid further consideration of—other possible reasons. They are, in short, reasons “for excluding normal free deliberation about the merits of” doing or not doing an action. H
For present purposes it will be most fruitful to follow Raz’s expression of the idea of a binding norm as an exclusionary reason for action. Once settled and specified, the legal reason requires one to exclude from one’s future deliberations the first-order reasons that might otherwise have weighed for or against the action that is now required or forbidden. To perform this work, exclusionary reasons must be settled as authoritative by someone. Some require little or even no specification. Insofar as there are exception-less moral norms, JoHn finnis, morAl ABsoluTes: TrAdiTion, revision, And TruTH (1991).
Those exceptionless duties, being duties owed to all human beings, correlate with and give rise to: the absolute liberties of all human beings not to be maimed, enslaved, and raped; claim-rights against anyone who maims, enslaves, or rapes; immunities from the loss of one’s absolute liberties and claims rights; and duties and powers in political communities and their officials to secure and enforce all those rights and duties. Some of those norms require some additional specification. For example, there is not obviously one uniquely-right answer to the question what the criminal punishment should be for maiming. Nevertheless, a duty not to maim, enslave, or rape and the correlative rights are, in common law terms, declared by the lawmaking sovereign, rather than settled and specified by it; 1 B
Yet the vast majority of exclusionary reasons are either undetermined or under-determined unless and until they are specified by some authority. Rights are absolute when they correlate with absolute duties. And a duty can be absolute and exceptionless only if it is a duty of abstention. John Finnis has explained,
Where these duties are negative duties of respect—duties not to intentionally damage or destroy persons in basic aspects of their flourishing— they can be unconditional and exceptionless: “absolute rights.” Where they are affirmative responsibilities to promote well-being, they must inevitably be conditional, relative, defeasible, and prioritized by rational criteria of responsibility such as parenthood, promise, inter-dependence, compensation and restitution, and so forth. John Finnis,
In many instances, moral and pragmatic considerations will not determine an affirmative duty, or not determine it fully, because specification requires an ordering of competing goods—alternative possibilities that possess intrinsic, intelligible value but which cannot all be pursued because of limitations of time, resources, abilities, and other human limitations—and those goods will not be measurable against each other on any common scale of measurement. Basic goods are incommensurable.
This is one reason why many (though not all) exclusionary reasons differ from individual to individual, group to group, community to community: many first-order reasons are incommensurable with each other. Different groups and communities of people have their own first-order reasons for action—the health of one’s family, the success of one’s business partnership, the safety of this neighborhood, the acquisition of knowledge within that school or a particular profession, their assembling together to worship according to their creed (rather than ours), the feeding of the homeless in one’s city, the redress of that wrong by this civil jury—that are not shared by the entire political community. The common good of the entire community as a whole does not exhaust the common goods of all of the individuals and communities within its jurisdiction. Groups and communities of people have goods that are common to their members that are incommensurable with—not measurable against or reducible to—the common good of the political community as a whole.
The goods of these groups and communities can reasonably be settled in a wide variety of plans and sub-plans, exclusionary reasons that bind a group’s members and coordinate their actions toward realization of the group’s common good, as opposed to some other good. And many plans and commitments can be constituted in various reasonable specifications. This is another reason why affirmative rights and duties are left rationally un- or under-determined by considerations of morality, justice, and prudence. Yes, I have a responsibility to educate my children. But is that duty satisfied by sending them to this school, or must I send them to that one? Is it wrong to educate them at home, or to hire a tutor? If a child is not academic in his interests and abilities, can I not reasonably enroll him in a trade school? The duty must be specified in context after consideration of many different facts and goods.
Even some duties of abstention are not absolute. Categorical, exclusionary reasons for action are those that block out of deliberation—foreclose consideration of as possible justifications for action—discrete categories of potential reasons, or all reasons but those in a discrete category or categories. For example, the duty to exclude oneself from others’ property is overridden when entry is necessary to save a human life, to execute legal process, or to meet some other strict necessity, but is otherwise absolute. 3 B
Responsibilities of equality, non-discrimination, and universalizability of concern are among those norms that are undetermined and under-determined in the abstract. What follows draws heavily upon H
Discrimination is a fact of reasoning. The act of making law—indeed, every act of practical judgment—is discriminatory because choosing and specifying exclusionary reasons for action is a matter of ruling out potential reasons for action as not to be acted upon and privileging and committing oneself to those reasons for which one will act. That discrimination, lawmaking, and judgment sometimes go wrong does not lessen the need for discrimination, law-making, and judgment. Those actions, when done well, are not only valuable but in many instances strictly necessary.
Law discriminates; reasoned deliberation discriminates; judgment discriminates. The question in each case is whether discrimination is justified on the basis of reasons, and therefore reasonable discrimination, or instead lacking in reasoned justification because motivated solely by fear, prejudice, passion, or other non-rational sources of partiality. It seems non-controversial, for example, that racial discrimination requires some justification, which generally must be compelling and proportionate. The Supreme Court of the United States has ruled that racial discrimination is justified on a strict-scrutiny, ends-means analysis when used to reverse the legacy of previous de iure discrimination or to achieve diversity in an elite law school: Grutter v. Bollinger, 539 U.S. 306 (2003).
And acts of discrimination, law-making, and judgment are not only strictly necessary, they are also valuable. Discrimination cannot be eliminated for the sake of pure equality without injuring essential aspects of human well-being, which require practical reason and practically-reasonable judgment to bring them about and to sustain them. To posit equality as an absolute (or even categorical) norm is to eradicate the possibility of reasoning rightly, for the common good. As John Finnis expresses it, to “act without discrimination” is to act “without good judgment, indiscriminately.” Finnis,
Equality cannot justify overriding norms and judgments of difference because it is not a justification in itself—an intrinsic good or a basic moral requirement—for any law or judgment. Girgis,
Human beings are alike in some characteristics and unlike in others; some considerations are so peripheral as to be irrelevant and others are essential. Without an informed and accurate determination which characteristics are relevant, “‘Treat like cases alike’ must remain an empty form,” and Hart has therefore suggested that justice consists of “two parts: a uniform or constant feature, summarized in the precept ‘Treat like cases alike’ and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different.” Hart,
Thus, equality or inequality is a conclusion, not a premise, of practical deliberation and judgment. Until one considers the reasons for and against different treatment one cannot say whether equal or unequal treatment is warranted. In this calculation, as compared with difference, equality is no greater or lesser reason for action.The norm of justice is a norm of equality
Sherif Girgis has argued that this means there is no moral default in favor of equality as against difference. Instead,
the true moral default is not equal treatment but
There is no more of a presumption of equal than of unequal treatment. Indeed, we might as well have a Principle of Differentiation, to match the principle of equality: there is a presumption of Girgis,
Girgis concludes, “There is thus no neutral case in which a presumption of moral equality adds a point to break a putative 0-0 tie in favor of equal (as opposed to unequal) treatment of two parties. That would mean no reasons were at stake; yet intentional action is
Equality as an absolute norm threatens those reasons. Non-discrimination laws achieve their objectives by eliminating from deliberation, judgment, and choice, possible reasons for action that are deemed not relevant considerations in the context identified. As Finnis explains, the point of laws prohibiting direct discrimination is “to banish protected characteristics from decision-makers’ deliberations; the rationale’s presupposition is that they are irrelevant, and that decision-makers considering personal characteristics can therefore be rightly required to focus exclusively on such characteristics as are relevant to the task in hand.” Finnis,
The danger here is manifest. If a universal law of general application banishes from deliberation and judgment a consideration that is
Even accommodations or exemptions from non-discrimination laws can (perversely) contribute to the problem, even as they are offered as forms of mitigation. For to give reasons of difference a secondary role of deliberation, to treat differences as if they are exceptions to a general rule of sameness, is to obscure the plurality and incommensurability of plans and norms within society and to distort and even suppress important human goods and requirements of justice, such as the unique value of natural marriage, the well-being of children, obedience to conscience, merit and desert, and much else. Finnis,
Totalization of the norms of difference by a central power inevitably treats cases that are relevantly different as if they were the same. Uniform rules of general application can be neither uniform nor general if they are to take into account every textured feature of practical reason’s operation in society. In our egalitarian age norms of equality and non-discrimination seem especially prone toward this danger. Equal treatment is certainly an important consideration and a worthy goal when it is warranted but not when it banishes from deliberation other worthy considerations and goals, such as meritorious treatment, proportionate distribution, integrity with prior judgments, and all of the other aspects of justice, not to mention all of the other human goods that can be pursued in society only if individuals and groups have freedom to pursue them.
Contemporary equality architects seem to be simply unmindful of those considerations, and seem to pay little attention to the instantiation of those distinctions in private law. They would do well to pay better attention. A side effect of the over-pursuit of equality and non-discrimination is, as John Finnis observes, a “negative impact on established constitutional rights such as freedom of association, freedom of religion and conscience… a negative impact which in each case involves also a very substantial shrinking, or invasion, of private life by coercive law.” Finnis,
This broad, perfectionist conception of law as exclusionary reason directing action toward a specific good or goods makes it possible to perceive the law-ness of private law without reducing private law to absolute, individual rights. Private and non-state civic groups need to coordinate their actions in order to achieve their common goods, just as wholesale political communities do. A private group’s first-order reasons for acting or refraining from acting—human goods, requirements of practical reasonableness (those requirements that are today called morality and in the common law tradition are often referred to as natural law or the law of nature), conscience, local and general customs—must be specified as authoritative, exclusionary reasons for action if the community is to coordinate the actions of its members. This can be done only in one of two channels, either (1) in unanimity or a close approximation of unanimity, such as custom or agreement, or (2) by some authoritative promulgation. Finnis,
In instances where the norm was un- or under-determined prior to its specification, the act of settling and specifying the norm is what brings the norm into being. And when an individual or private group or association specifies its norms it constitutes more than merely its rights and duties. It also constitutes itself. It makes itself in what Thomas Aquinas identified as the order one establishes in the operation of the will. Thomas Aquinas, Commenta ry on Aristotle’s Nicomachean Ethics 1–2 (C. J. Litzinger trans., Dumb Ox 1993). Compare Raz, J
The act is one of adopting exclusionary reasons that exclude various possible first-order reasons. By excluding from future deliberations those reasons for which the person or group will
So, the institution is constituted in part by the first-order reasons it does not choose to pursue. It is constituted even more clearly by the first-order reasons it chooses not to pursue. One university, Vanderbilt, constitutes itself as a university that excludes student groups which insist upon following Christian and Orthodox Jewish ethical commitments. Michael Stokes Paulsen, Adam J. MacLeod, Adam J. MacLeod,
one gets the sense that private law was not a primary concern in Soviet socialist legal theory. Unlike the consolidation of political power, which required the complete instrumentalization of Lon Fuller, Martin Krygier,
When it appears in early socialist jurisprudence, private law is portrayed as abstract and artificial. Evgeny Pashukanis, whom Fuller titled “the leading jurist of Russia,” Fuller, E
So, early Socialist legal thought treated private law as a servant of capitalism, created by capitalist logic to serve capitalist ends, and therefore an impediment to emancipation. Among capitalism’s instruments of repression, the Socialist legal theorist identified property and contract as playing particularly instrumental roles. Private law establishes the foundation for rights and duties borne by individuals, enables contractual exchange in the market, and is therefore required for commerce among independent actors. Private law is unnecessary under a totalizing regime of planned production and association. Krygier, ArTHur riPsTein, equAliTy, resPonsiBiliTy, And lAw 253 (1999).
Yet as long as it remains, private law is inimical to central planning because in the course of enabling capitalism it substitutes for the comprehensive plan so essential to communism’s success, it maintains the artificial forms of individualism, and thus it impedes the emancipation that Communism promises to deliver. Private law’s presumptions of individual subject, individual and group agency, and private interest are inconsistent with the comprehensive plan of the unified mind Krygier,
The central, unified mind directing the operation of law seems to have played a significant role in later Socialist jurisprudence, as law was accepted and turned toward the Party’s ends. I am indebted to Michael DeBow for this observation. Fuller, Christopher Osakwe, Loeber,
The central mind—the Party—was “the brain, the conscience, the mind of the Soviet society.” The Party was the one “self-perpetuating organization.” Private action poses no threat to the totalitarian project as long as that action is directed by norms specified by the central mind, but it is a threat if directed by the reasoned deliberations and judgments of the independent moral agents. Thus, use of land was assigned to private individuals and groups in Soviet society, and even some personal property rights, but not the authority to specify the rights and duties of property ownership by powers of exclusion, alienation, mortgage, or donation. Osakwe,
For the same reason, there are no rights in Socialist jurisprudence, only concessions of privileges that the sovereign may freely revoke. Indeed, citizens are property of the state, and “the dominion of the sovereign over all members of the society is absolute.” Osakwe,
That is merely one totalitarian legal theory, although arguably the world’s most influential to date. Perhaps the antipathy of Socialist jurisprudence toward private law is (ironically) historically contingent. Is there a
The argument for the affirmative is straightforward. Private law is inimical to totalitarian rule because and to the extent that it is inimical to central planning, which requires a unity of end(s) and a single, comprehensive plan for its/their attainment. The existence of private law suggests plural ends and means of ordering, and therefore suggests plural instantiations of lawfulness.
On the other hand, this plurality of orders within private law might suggest that private law is not law in fact, and therefore not a rival to the rule of a unitary lawgiver. Private law does not share public law’s ambition to provide, as John Finnis has characterized the end of public law, “comprehensive and supreme direction for human behaviour” Finnis,
If private law does not entail universal rules of general application, if many of its doctrines are indeterminate and specified only in particular legal judgments, if it is not publicly promulgated ex ante, and if it is not backed by coercion or threat of coercive sanction, then private law might not partake of the nature of law. In these and other respects, private law does not always, or even often, exhibit those attributes without which, Lon Fuller influentially argued, a law cannot be a law. lon l. fuller, THe morAliTy of lAw (1964).
Yet for those who employ private law (i.e. everyone who lives in a jurisdiction in which private law is permitted), these facts about private law are considered strengths, not failings. Thus, there is at least as much reason to interrogate the employment of public law rules as focal instances of law as there is to doubt the law-ness of private law. Benjamin Zipursky points out that Fuller’s view understands law as “a system of governance that works by consolidating authority in the state, which issues enforceable rules of conduct and has the power to enforce those rules of conduct by sanctioning those who fail to comply with them.” Benjamin C. Zipursky,
Zipursky and Ernest Weinrib are among those who have noticed that private law has its own inner logic, which is not reducible to its instrumental utility for attaining collective ends. Zipursky, Zipursky, Hanoch Dagan,
To develop a complete account of the domains of private and public law and the boundaries between them is beyond the scope of this article. For present purposes focal cases must suffice. That the norms of private domains
One should hasten to note that, just as it would be a mistake to view private law as defective public law, one could go wrong by viewing public law as merely a security against the failings of private ordering. It is sometimes necessary and justified for a political community to work according to a unitary plan of action for discrete times or discrete ends, as where a central authority is waging a defensive war against an enemy bent on the society’s destruction. Nor should all law be private law. There are some absolute and categorical norms without which no society can flourish—as observed above, one must never maim, enslave, or rape. And these norms must in justice be specified not only as private rights and duties—rights of bodily integrity, liberty, exclusion, etc.; duties not to kill, enslave, or take without permission—but also as ex ante prohibitions, promulgated as clear rules and backed by threat of criminal sanction. And sometimes it is necessary for the political community to promulgate malum prohibitum offenses in order to achieve particular goods by discrete plans of action—protection of streams and rivers from pollutants, the timely and safe delivery of the mail, etc. Furthermore, those entrusted with the authority to enforce these rules and mete out the sanctions must themselves be controlled by rules, lest they abuse their power. So, we have constitutions.
Nevertheless, many rights and duties cannot reasonably be specified except within particular contexts, and upon particular judgments of reasonableness. And someone must perform the authoritative specifying. Institutions and authorities of private ordering fill this need. And this is why private law is necessarily at odds with totalitarian rule. For a governing elite to be totalitarian, and not merely thuggish, it must establish a monopoly on judgments of practical reason. It must become the only source of exclusionary reasons for action. To the extent that people look to other sources of authority when deciding what they should and should not do, the central plan is not commanding total obedience.
A measure of a regime’s success in establishing totalitarian rule will be how effectively it displaces private law. The existence of private law is an indication that the central authority is not the only domain of deliberation and judgment within the society, and therefore the central plan is not in fact unified and comprehensive. Institutions of private ordering must be deprived of either their freedom or authority (or both) to engage in meaningful practical deliberations.
That is the external conflict between the central plan and private law. There are at least two additional reasons why private law is anathema to totalitarian rule, both related to the reflexive, internal aspects of private ordering. First, totalitarian governments cannot let freethinking citizens and institutions flex their practical-reasoning muscles on questions of civic importance. To defer to the reasoned judgments contained in private law is to
Normative ordering is a self-constituting activity in the sense of being will-ordering, which is habit-forming, and therefore character-forming. The exercise of practical reason, including the specification of authoritative reasons for one’s own conduct and the plans and actions of one’s groups and associations, is a reflexive (self-constituting, architectonic) exercise. R
Second, private ordering is a self-constituting activity in the sense that, by selecting exclusionary reasons from possible alternatives, an individual, group, or community commits itself to those reasons and not other reasons. By deliberating and choosing, individual and group agents make for themselves new obligations and other reasons for action, which may be inconsistent with what the central authorities would choose for them. They commit themselves to ends and means that others might not value or appreciate, and they constitute their identities around those ends and means in the order of the will.
The very idea of private law presupposes that there are domains within which one may exercise practical judgment and free choice in ordering one’s affairs, either by oneself or with other moral agents, for common ends. So, the incompatibility of totalitarian legal thought with institutions of private ordering is perhaps no mere coincidence. Thus, nongovernmental organizations were invited to participate in Soviet governance as agents of the central powers. Osakwe, Krygier,
The most blunt and direct way to achieve a monopoly on authority is of course to eradicate, co-opt, or de-legitimize all of the institutions of private ordering, and to kill or ruthlessly oppress anyone who does not go along with the master plan of the central mind. Doing so crushes the souls and suppresses the humanity of the governed by depriving them of the domains, groups, and associations within which they reason together in a fully-human way. That was a favorite path to totalitarian rule in the twentieth century,
ISIS represents a new form of totalitarianism with perhaps the purest jurisprudence imaginable. The combination of modern weaponry with a fundamentalist jurisprudence grounded in a text that sanctions violence and oppression has produced a state in which all law emanates from a single source—the Caliphate—and even the slightest departures from its rules are deterred. Punishments for disobedience are specific and inhumane. They include beheading, raping, and enslaving. So it is understandable that many people focus on the actions of ISIS. But motivating the violence and degradation is a coherent, if barbaric, jurisprudence that is totalizing in its ambition and apocalyptic in its eschatology. Caner K. Dagli,
In other words, the law promulgated by ISIS consists of fully-conclusive, absolute, exceptionless, exclusionary reasons for action. Interestingly, those fully-exclusionary reasons are binding upon everyone, including the ruling elites within ISIS. Unlike Communist rulers who have often acted arbitrarily, the caliph of ISIS, Abu Bakr al-Baghdadi, understands himself to be obligated to obey a particular interpretation of Sharia law. Totalization of all norms and institutions is not a means to an end, it is the end itself. The reason for ISIS to exist is to impose one law on everyone within ISIS, top to bottom, and everyone who comes under its control.
Yet eliminating private law is a useful tactic even when it is not itself a political power’s strategic goal. It has proven effective at enabling many projects of social engineering. Governing elites in liberal democracies have ways of eliminating whole categories of private law in broad daylight. These methods leave the forms of institutional autonomy in place but eliminate their authority over important areas of civic life. Two of them have proven popular in recent decades. One, by depriving a community or institution of its sources of authoritative reasons—purpose, conscience, tradition, sacred texts, promises, law—one can deny it the raw materials it needs to order its affairs independently of the collective will. Two, by answering all of a community’s practical questions on its behalf, a regime can deprive that community or institution of opportunities to exercise deliberation and judgment.
I will call these practices tactical totalization. Identifying and naming the phenomenon suggests where it might be observed in liberal democracies, and shows how it differs from totalitarian legal ambition. As Martin Krygier observes, no parallel to the “systemic purposefulness” of Communist totalitarianism can be found in liberal democracies. Krygier,
Nevertheless, this assumption is expensive and fragile. As Krygier observes, it has grown in Western societies over centuries. Experience shows that it cannot be decreed, and that it can be destroyed easily. Thus, we should not allow reified distinctions between totalitarianism and liberal democracy to conceal the possibility of totalization. Totalization of legal norms does occur in liberal societies. It might seem to arise democratically because it arises bloodlessly. However, upon closer examination it seems to emanate not from democratic self-governance, but rather from central authorities of public law, albeit in the name of, or on behalf of, democratic notions such as equality.
One might view totalization in liberal societies as a jurisprudential feature of the political pathology that Alexis de Tocqueville predicted would afflict the United States in its later years, what he called “soft despotism,” a new tyranny that grows out of the American commitment to radical equality. In the new age of “enlightenment and equality… rulers could more easily manage to gather all public powers into their own hands and to intrude further and more regularly into the realm of private interests than was ever possible for any ancient sovereign.” The “same equality which fosters despotism also tempers it.” As fortunes are smaller, imagination is restricted, and pleasures become simpler, the “universal moderation” within democracies would control the ruler’s excesses and constrain the “disorderly surges of his desires within certain limits.” But the ruler will stand above the masses nonetheless, “an immense and protective power” who seeks not “to prepare men for manhood” but rather “to keep them in perpetual childhood.” The governing power is happy to remove from the subjects entirely “the bother of thinking and the troubles of life” and to replace those with “a network of petty, complicated, detailed, and uniform rules.” Tocqueville,
Tocqueville saw “quite clearly that, in this way, individual intervention in the most important affairs is preserved but it is just as much suppressed in small and private ones.” The consequences that Tocqueville anticipated are worth considering at length. [T]he ruling power, having taken each citizen one by one into its powerful grasp and having molded him to its own liking, spreads its arms over the whole of society, covering the surface of social life with a network of petty, complicated, detailed, and uniform rules through which even the most original minds and the most energetic of spirits cannot reach the light in order to rise above the crowd. It does not break men’s wills but it does soften, bend, and control them; rarely does it force men to act but it constantly opposes what actions they perform; it does not destroy the start of anything but stands in its way; it does not tyrannize but it inhibits, represses, drains, snuffs out, dulls so much effort that finally it reduces each nation to nothing more than a flock of timid and hardworking animals with the government as shepherd. Tocqueville, supra note 1, at 806.
On the other hand, soft despotism has some rather hard edges of its own. Segregationists used tactical totalization in liberal societies in the twentieth century. Unlike totalitarians, they did not abolish religion or private property, nor socialize the means of production. The project of racial segregation was not tobring all of society under a single power for all purposes. Rather, it was to force an implausible conception of equality upon everyone, using public law to make segregation a condition of participation in civic life. Segregationists needed to ensure that every question of interaction between the races was resolved by a single answer. They succeeded as long as they eliminated all norms other than the one norm preferred by the state. Indeed, civil disobedience has proven fatal to segregationist regimes when it has appealed to rights and duties that did not owe their existence to the state.
Though tactical totalizers do not control society as comprehensively as strategic totalitarians, they can afford to leave no domain of life beyond the reach of public law. Private ordering in general, and private laws in particular, often prove resistant to a state-approved project. Private law enables whites to give or to sell their title to blacks, or to vest easements, licenses, bailments, and other private rights in their black neighbors, and vice versa. Therefore, a state that is committed to segregation must either eradicate those powers of the sovereign owner or direct their exercise. Private law enables blacks and whites to worship together, to collaborate in business, to learn in the same classrooms. The rights and duties behind which those interactions are possible pose an existential threat to segregation.
During Jim Crow, public law institutions masked their violence to private ordering by retaining the forms and names of the private rights and duties that they had subverted. So, private law was not often a collaborator in Jim Crow. Rather, it was thrice a victim. First, the reasoned judgments it contained were denied juridical enforcement. Second, its emptied form was filled with public rules of forced segregation. Third, it was blamed for the offenses of the public-law authorities who used its name and authority to achieve their unjust ends.
To take a prominent example, property law has long prohibited racial discrimination in public accommodations where race is irrelevant to the purpose for which the property is held open to the public. An owner of a private residence can exclude anyone for any reason, or no reason. An owner who opens his land to the public, say as a pub or a bakery, may only exclude for valid reasons. 3 B Coger v. Northwestern Union Packet Co., 37 Iowa 145 (1873); Ferguson v. Gies, 46 N.W. 718, 719, 720 (Mich. 1890).
During Jim Crow, segregationist states produced judicial decisions permitting segregation and enacted statutes A.J. Van Der Walt,
In the United States the ruse was largely effective. For example, the failure to identify and distinguish private rights and duties has caused confusion about the nature of the dispute in 334 U.S. 1 (1948). Herbert Wechsler,
Bork illustrated his concern by imagining a houseguest who “becomes abusive about political matters and is ejected by his host,” and then sues his host in state court and loses. B
Yet, Matthew J. Franck,
The Shelleys took lawful title to the contested residence when Fitzgerald, their predecessor-in-title, exercised his power of alienability to deliver to them a warranty deed. Their new neighbors on Labadie Avenue in St. Louis then asked the courts of Missouri to give equitable enforcement to a written agreement, which most, but not all, of the homeowners had signed and recorded, prohibiting for a period of 50 years any possession of the residences by “any person not of the Caucasian race.” Shelley v. Kraemer, 334 U.S. 1, 4-5 (1948).
These cases present for our consideration questions relating to the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property.
It is understandable that Vinson’s reference to “covenants,” the purpose of which is to govern “occupancy of real property,” would mislead. But in fact, there was no real covenant to enforce, only a contract. And the Shelleys were neither contracting parties nor third-party beneficiaries of the contract. No vested rights were at stake other than the title of which the Missouri courts intended to divest the Shelleys.
It is true that the Missouri Supreme Court had enforced the restrictive agreement as a real covenant, but that court simply got the law of covenants wrong. The common law doctrine, followed in Missouri, requires some common nexus of title between covenanters, known as horizontal privity, without which the burden of the covenant cannot run with the land. Allen v. Kennedy, 2 S.W. 142, 143 (Mo. 1886); Iowa Loan & Trust Co. v. Fullen, 91 S.W. 58 (Mo. Ct. App. 1905). Kraemer v. Shelley, 198 S.W.2d 679, 680 (Mo. 1946).
Kraemer and the other neighbors convinced the Missouri Supreme Court to order the chancellor to enforce the unenforceable covenant with injunctive relief, which would have resulted in the eviction of the Shelleys and their loss of title, and to retain jurisdiction over the case to ensure implementation of the injunction. In doing so, they successfully implicated the Missouri courts in unlawful action in two ways. First, they convinced the Missouri Supreme Court to divest the Shelleys of a vested, legal right by way of equitable relief. Equitable enforcement would clearly have violated equal protection because it would have entailed undoing what law required, and doing so on the ground that the Shelleys were not of the Caucasian race.
Second, the Kraemers implicated the Missouri courts in enforcing a covenant that would not have been enforced as a matter of neutral property doctrine. As a matter of established private law doctrine, the promise did not run with title. There simply was no private right to enforce, apart from the Shelleys’ vested dominion over the residence they had purchased from Fitzgerald.
As Franck points out, Chief Justice Vinson, the author of the 346 U.S. 249 (1953). Barrows v. Jackson, 346 U.S. 249, 261 (1953) (Vinson, C.J., dissenting).
In
The elimination of private law and its plural goods from consideration in deciding important legal questions is an animating impulse of many governing elites today. A clear articulation of the totalizing impulse is a recent book arguing, without any apparent sense of irony, that a “tolerant-liberal democracy should be reluctant to tolerate religious claims for accommodation” and for “conscientious exemptions from legal norms.” Y
The shift from strategic totalitarianism to tactical totalization might be perceived in China. China has grown more open in some ways; it recently amended its one-child policy to permit couples to have two children. Steven Jiang & Susannah Cullinane, Michael Forsythe, Ian Johnson,
In Western Europe one sees the totalizing impulse in the recent effort to criminalize male circumcision, Kharunya Paramaguru, John MacDougall, Michael Steininger, An American lawyer involved in litigation on behalf of German families explains, Germany does permit some people to homeschool, but it is rare and in general Germany does ban homeschooling broadly—although not completely. (Germany allows exemptions from compulsory attendance for Gypsies and those whose jobs require constant travel. Those who want to stay at home and teach their own children are always denied.) Michael Farris,
China and Germany of course have totalitarian histories. But even societies with long-standing traditions of ordered liberty today are prone to tactical totalization. In the land of Magna Carta, Members of Parliament have recently moved to prohibit some testators from devising and bequeathing their property in accordance with their religious convictions; they promised to open a joint investigation by the Commons Justice and Home Affairs Committees into the use of religious law to undermine equality rights. A headline in the John Bingham, The Law Society,
Germany does permit some people to homeschool, but it is rare and in general Germany does ban homeschooling broadly—although not completely. (Germany allows exemptions from compulsory attendance for Gypsies and those whose jobs require constant travel. Those who want to stay at home and teach their own children are always denied.)
Many Muslims are bound in conscience to dispose of their assets in obedience to Sharia, which differentiates between Muslim and non-Muslim practices. These dispositions are not unlawful; they do not involve honor killings, forced marriages, or criminal acts. (These Muslims are not ISIS.) The norms governing the dispositions give preference to religious observance over nonobservance, marriage over divorce, and traditional distributions of resources between men and women. Women get smaller elective shares, but are entitled to keep their own property separate and to require payment of a marriage gift, while men’s property is for the communal use of the family.
To be sure, some radical strains of Islam are totalitarian and oppressive (see ISIS). However, allowing peaceful Muslims to obey their consciences without committing malum in se offenses is not endorsing oppression or even their beliefs. Enforcing the wills of religious testators in court would not entail endorsing the judgments of religious tribunals or arbitration authorities, Contrast the anti-Sharia laws discussed in John Witte, Jr. & Joel A. Nichols, The effort to prohibit enforcement of these wills is an even more straight forward attack on private law and religious exercise than laws which prohibit courts from giving effect to Sharia law or the laws of nations governed by Sharia. Oklahoma’s attempt to enact such a law was struck down for its infringement of religious freedom under the Establishment Clause of the First Amendment to the United States Constitution. Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012).
Or consider Canada. Nine years ago, ontario outlawed religious arbitration. In a perfectly succinct statement of tactical totalization, the ontario premier insisted that there is only “one law for all ontarians.” Trinity Western University,
After performing extensive due diligence and making the necessary proposals and applications, Trinity Western obtained certification from the relevant education ministries and accreditation from the British Columbia Law Society. Charlotte Santry, Trinity Western Univ. v. B. C. College of Teachers, 1 S.C.R. 772, 2001 SCC 31. (2001)
Now Trinity Western’s law school is fighting for the right to exist. The Canadian Press, Brief of the Intervenor, The Attorney General of Canada, Jesse Legaree, Lorna Dueck,
Here in the United States, the prognosis for private law is mixed. The domain of national, public law has expanded enormously. A recent Federalist Society symposium asked, “Is there any area of modern life to which federal government power does not extend?” Title Page, 37 H
On the other hand, in the last few terms the Supreme Court has strengthened the autonomy of institutions of private ordering. It has upheld the rights of property owners to be protected against regulatory takings, Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511, 184 L. Ed. 2d 417, 75 ERC 1417 (2012); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013). Hosanna-Tabor Evangelical Lutheran Ch. & Sch. v. EEOC, 132 S. Ct. 694, 181 L. Ed. 2d 650, 114 FEP Cases 129, 25 AD Cases 1057 (2012). Sackett v. EPA,, 132 S. Ct. 1367 (2012).
These developments signal the Court’s increased sensitivity to (at least some) private rights and duties. But do they matter in light of public law’s ambitious expansion project? If there is no jurisprudential question which public law is willing to leave unanswered then to preserve the autonomy of private law makers is to award them a pyrrhic victory. Institutions of private ordering are permitted freedom to deliberate and to exercise judgment… but about what?
Not only the ambitions of the regulatory state, but also those of courts ratifying individual right claims, can jeopardize private law. The invention of novel, uniform, and individualized constitutional rights is just as useful to tactical totalizers as the expansion of the Code of Federal Regulations. Abstract rights which have no foundation in natural law, the common law, private law, custom, or usage, must necessarily deprive institutions of private ordering of their jurisdiction over whole categories of human affairs.
Tactical totalization is a standing temptation for governing powers on both the left and the right. Robert Bolt’s play, 26 U.S.C. § 5000a. 78 FR 39869 (2013). 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). Snyder v. Phelps, 533 F.Supp.2d 567 (D. Maryland 2008).
After hearing this evidence, a jury determined that Phelps and his fellow protestors should be held liable for intentional infliction of emotional distress and invasion of privacy, established tort doctrines with specific elements. Snyder v. Phelps, 131 S. Ct. at 1219.
With this novel constitutional right afoot, no domain is sacred from the intrusions of politics. After
This rule of putative neutrality is the Court’s own invention. The text of the First Amendment is silent on the question whether wrongful conduct can ever constitute protected speech. And before the Court’s 1964 decision in 376 U.S. 254 (1964). Konigsberg v. State Bar of California, 366 U.S. 36, 49, and n. 10 (1961); Times Film Corp. v. City of Chicago, 365 U.S. 43, 48 (1961); Roth v. United States, 354 U.S. 476, 486—–487 (1957); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); Pennekamp v. Florida, 328 U.S. 331, 348—–349 (1946); Chaplinsky v. New Hamphire, 315 U.S. 568, 572 (1942); Near v. Minnesota, 283 U.S. 697, 715 (1931).
In Restatement (First) of Torts § 569 (1938).
In short, tort law did not
The cultural context in which the Court decided
If the assumption were true then a case at least as worthy of the Court’s intervention can be found in 309 P.3d 53 (2013). Elane Photography, LLC v. Willock, 134 S. Ct. 1737 (2014). Elane Photography, 309 P.3d at 59-–60. For philosophical articulations and defenses of this distinction, Baker v. Nelson, 409 U.S. 810 (1972)
That distinction is found throughout the rights and duties of private law to this day. Even States that redefined marriage years ago to extend legal recognition to same-sex couples, such as Massachusetts and New York, have retained the distinction between natural marriage and same-sex marriages for many purposes. Massachusetts, for example, retains the presumption of paternity, Massachusetts General Laws c. 209C, § 6. Nguyen v. Holder, 21 N.E.3d 1017, 1021-–22 (N.Y. 2014). 539 U.S. 558 (2003).
The right infringements in Elane Photography, 309 P.3d at 79-–80 (Bosson, J., concurring).
Tactical totalization projects have far-reaching consequences for civic order. The New Mexico Supreme Court’s decision in
These commissions, which are generally comprised of lawyers and other experts, ignore many of the traditional requirements of due process, such as trial by jury, even as they exercise authority to destroy the lives and fortunes of private citizens. Most importantly, they tend to resolve issues with uniform rules that are impervious to the nuanced demands of practical reasonableness. It takes a rather unprecedented fully exclusionary reason to scrub from deliberations the distinction between marriage and non-marriage and the freedom of conscience to discern between them.Surely it is at least sometimes rational to act on that distinction. But the commissions have not allowed it.
Historically, juries have tended to be better grounded in nuance, local context, and common sense. The disappearing role of the jury in ordering our private and civic affairs is a loss for liberty. When empanelled in a civil action, a jury is an important institution of private ordering and private law. The jury’s deliberation and judgment are acts of private citizens resolving specific disputes between other private citizens. The jury’s verdict is binding upon the parties, not the public at large, and is generally limited to questions of fact, which are not universal but rather peculiar to the case. And juries can inject proportion and common-sense judgment into legal institutions which are badly in need of both.
A silver lining in this cloud is that, unlike strategic totalitarians, tactical totalization leaves the forms of private law concepts and institutions in place, even as it subverts those concepts and institutions for its own ends. The persistence of the forms can lead curious lawyers to wonder where they came from, and what reasons grounded their intelligibility before law was instrumentalized. If we examine them carefully, we might learn something about liberty, pluralism, and the common good.
It is interesting to note that Tocqueville, who predicted the rise of soft despotism, thought it neither possible nor desirable to re-institute aristocracy as a cure for the despotic tendencies of liberal democracies. Instead, he recommended inter alia that powers removed from corporations and nobility be placed in the hands of “secondary bodies temporarily formed of ordinary citizens.” Tocqueville,
Tocqueville also observed that customs, private ownership, and other common-law sources of legal norms contributed to the healthy self-governance of the American people. He generally subscribed to the view that “associations of ordinary citizens may produce very wealthy, influential, strong people who resemble, in a phrase, aristocratic bodies,” and could increase freedom without diminishing equality.
Perhaps even more salutary is that, unlike strategic totalitarianism, tactical totalization is generally deployed on behalf of persons, rather than a collective or abstraction. It is sometimes deployed for bad reasons, as to prevent inter-mixing of races, and sometimes for good, as to secure freedom of political expression, but the justification, however flimsy or admirable, ultimately rests in the rights or ostensible well-being of a person or group of persons. As long as this priority of persons On which,
Universalizability of norms entails that our concern for the rights or well-being of one ought to correspond with and be tempered by our concern for the rights and well-being of others. If the justification for a project of totalization is that it will benefit person or group A then we ought to ask whether one can justify the costs it imposes upon person or group B.
For example, if Vanderbilt University’s law school should have the power and liberty to constitute itself by excluding those who do not share its conception of non-discrimination then we might wonder why Trinity Western University’s law school should not enjoy the power and liberty to constitute itself by excluding those who would undermine its conception of Christian virtue.
As long as totalization is justified with reference to persons and groups of persons, the justifications offered for projects of tactical totalization contain their own limiting principles. Reinvigorating those principles can promote the common good. Universalizability of norms recommends not a totalizing equality but rather a robust and variegated pluralism. History suggests that where private law flourishes, pluralism flourishes. And there human beings flourish.