Strategic and Tactical Totalization in the Totalitarian Epoch

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,”⁽¹⁾ a tyranny that he predicted would be unlike the Roman empire and other ancient tyrannies in that “it would be more widespread and kinder; it would debase men without tormenting them.”⁽²⁾

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⁽³⁾). Because basic human goods are incommensurable and affirmative responsibilities are open-ended, most duties of abstention and all affirmative obligations are un- or under-determined by reason. The act of settling and specifying those duties and their correlative liberties and rights is a reflexive act, which has moral value for the groups and communities that perform it, as it forms identity in the order of the will. The liberty to deliberate, choose, and specify norms within domains of private ordering is therefore an indispensable condition of developing one’s ability to realize the distinctly human good of practical reasonableness.

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.

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 public law, collectivization required centralized control of productive resources. It was primarily an economic project focused on control of the resources themselves rather than the norms governing their use and management.⁽³²⁾ Yet the norms of private law are specified as incidents of, and by the authority exercised in, the power to control. Who has dominion has the authority to make law within the domain. And so private law is not excluded from the twin Socialist critiques of law generally, which assert (as Lon Fuller summarized them) that “(1) law and the state are a superstructure reflecting the basic economic organization of society, and (2) in the socialist economy of the future, both law and the state will ‘wither away.’”⁽³³⁾ Early Socialist jurisprudence seems to have taken for granted that private law, like all law, would disappear as capitalism disappeared. It would be unnecessary under a regime of centrally-planned production and association.⁽³⁴⁾

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,”⁽³⁵⁾ adopted Marx’s Hegelian view of property ownership, in which property becomes owned when the owner’s will is placed into the thing. On this foundation he built a characterization of private law as formal and abstract. Ownership and the rules and incidents that attach to it are legal forms originating in competitive trade and designed to distinguish subject from object in order to make commercial exchange possible. The rights and duties of property and private law are abstract forms designed to create artificial categories of individual rights and responsibility.⁽³⁶⁾

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.⁽³⁷⁾ And its forms are ultimately illusory. As Arthur Ripstein observes, for Pashukanis, private law’s forms of agency, responsibility, and formal equality misrepresent the reality that “the choices for which agents are responsible are themselves shaped by the market.”⁽³⁸⁾ The vision was that, when conflicting individual purposes were abolished, private law would be rendered obsolete and wither away.

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⁽³⁹⁾ with its unitary good and singular means.

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.⁽⁴⁰⁾ Unlike Pashukanis, for whom Socialist law was still law, and therefore fundamentally bourgeois, later Socialist jurisprudents made their peace with the idea of law.⁽⁴¹⁾ In that later Socialist jurisprudence, the whole of Soviet law is a single organic being, comprised of soul and body governed by a single reason and will.⁽⁴²⁾ Its parts have no minds of their own; they do not deliberate and render judgments. So, for example, in the Soviet model of planned contracts, “the will of an administrative planning agency” substituted for “the will of the contract partners.”⁽⁴³⁾

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.⁽⁴⁴⁾

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.”⁽⁴⁵⁾ Dominion entails authority to settle norms—rights and duties—for those within the domain. Plural domains, or even a government whose powers are separated among different branches or federal sovereigns, can specify legal norms that bind both the governed and those who exercise authority. But rights and duties are juristic concepts attaching to legal subjects, which are forms peculiar to capitalism. By contrast, the unitary sovereign, directed by the unified mind, has no need of rights and duties. This unitary sovereign from which all rights emanate as concessions of privilege is not bound by its own law, nor by anyone else’s.

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 necessary incompatibility between private law and totalitarian legal thought?

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”⁽⁴⁶⁾ in the political community as a whole. It does not claim to be the source of validity of other normative arrangements, and it seldom resorts to coercion. It does not often even attempt to supply conclusive reasons for action ex ante.

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.⁽⁴⁷⁾ Private law might lack law’s indispensable inner morality. If that is true then the ends and means of public law might exhaust the ends and means of law.

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.”⁽⁴⁸⁾ Private law cannot be understood so simply. It functions by responding to the nearly-infinite varieties of acts of private ordering, and therefore must provide many different settlements to various inquiries. A conception of law that takes public law as its defining instance or focal case might not capture the complexities of private, legal ordering.

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.⁽⁴⁹⁾ This suggests that private law is authoritative, but in a different way than public law. Not all of it is concerned with governance. Some private law (e.g. condominium bylaws or university nondiscrimination policies) mimics pubic law. But other areas of private law are concerned with specifying private rights and duties, e.g. property,⁽⁵⁰⁾ empowering those harmed by wrongful conduct to obtain redress, e.g. torts⁽⁵¹⁾ and remedies, and other purposes that are not reducible to governance, e.g. contracts, trusts and estates, and commercial law. Thus Hanoch Dagan has argued that “monist theories can hardly account for the vast heterogeneity of our private law doctrines.”⁽⁵²⁾

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 are specified and treated as authoritative within the domains of private ordering means that private law is possible.⁽⁵³⁾ That private law does act authoritatively within its own domains is a factual matter open to observation. There are hard questions at the boundary between public and private law but there are also focal cases of each. A local custom, a bailment, a church bylaw, and a contract are all private laws. A handgun or marijuana ban, backed by threat of criminal sanction, is a focal example of a public law. Private law often provides for and depends upon reasoned deliberation about what to do within particular communities and specific contexts; in its focal sense, public law does not.

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 trust one’s fellow citizens to become capable of exercising authority over their own affairs. So, totalitarian governments must eradicate opportunities for private citizens to reason and to govern their own affairs.

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.⁽⁵⁴⁾ The more one does it, the more accustomed one becomes to doing it, and the better one may become at it. The act of normative ordering makes mature and wise citizens out of puerile and incompetent ones. This exercise brings about liberation, not from nature and material circumstances, but rather from servility and enslavement to the passions. Totalitarianism cannot long last when citizens are free and able to think and choose for themselves.

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.⁽⁵⁵⁾

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.⁽⁵⁶⁾

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,⁽⁵⁷⁾ and persists in some of the darker corners of the world today, especially North Korea and the Islamic State in Iraq and al-Sham, known as ISIS.

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.⁽⁵⁸⁾ ISIS does not seek the totalization of legal norms in order to centralize power, it seeks to centralize power in order to purify and totalize all legal norms. It punishes deviations from its rules with the death penalty in order that Islamic law has only one, determinate meaning; “the Quran means exactly one thing, and other levels of meaning or alternate interpretations are ruled out a priori.”⁽⁵⁹⁾

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.⁽⁶⁰⁾ In liberal democracies, particularly where the common law tradition is intact, we take for granted that law limits power, constrains government, and secures liberty. Underlying the rule of law, so foreign to the experience of those who live in totalitarian states, is “a widespread assumption within the society that law matters and should matter.”⁽⁶¹⁾

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.”⁽⁶²⁾

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.”⁽⁶³⁾ As opportunities for private ordering are eliminated, the citizens are infantilized. The new despotism “reduces daily the value and frequency of the exercise of free choice; it restricts the activity of free will within a narrower range and gradually removes autonomy itself from each citizen” so that all are eventually reduced to “a flock of timid and hardworking animals with the government as shepherd.”⁽⁶⁴⁾ Soft despotism thus totalizes the community’s norms and subdues its people without the executions, famines, and social disruptions associated with Soviet totalitarianism.

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.⁽⁶⁵⁾ And the racial identity of the would-be licensee is not a valid reason. Thus, positive enactments that codify prohibitions against racial discrimination in public accommodations are declaratory of the common law that preceded their enactment.⁽⁶⁶⁾

During Jim Crow, segregationist states produced judicial decisions permitting segregation and enacted statutes requiring racial segregation in public accommodations. The resulting rules have been called “property” laws, though they were really posited rules of public law. Apparently, this practice was not unique to the United States. One scholar of South African law has summarized, “In its dynamic mode apartheid law treated land and land rights as instruments for social change--individual rights were subjected to large-scale state interferences for the sake of building the dream, establishing the ‘colossal social experiment’ that was apartheid.”⁽⁶⁷⁾ That social experiment required destruction of private law’s content, be cause private rights and duties are settled and specified by agents and institutions beyond the state’s control. But it was useful to co-opt the forms of private law in order to co-opt the authority of private institutions.

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 Shelley v. Kraemer.⁽⁶⁸⁾ Herbert Wechsler and Robert Bork criticized the Shelley decision on the ground that it compromises constitutional principles of neutrality.⁽⁶⁹⁾ Like other non-neutral constitutional decisions, the argument goes, Shelley reduces constitutional adjudication to the preferences of judges concerning which actions are legally unacceptable. If any judicial enforcement of a private choice constitutes state action then any private choice becomes a matter of constitutional concern. But post-Shelley constitutional doctrine arbitrarily picks out those private choices that involve racially-discriminatory motives and leaves alone other private choices that would also be constitutional violations if they were state action.

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.⁽⁷⁰⁾ Bork worried that, on the authority of Shelley, the state court judgment against the rude guest must be construed as state action, requiring the Supreme Court to act as rule-maker for all conduct by private individuals on private property. The only way to avoid that result, Bork thought, would be to import into constitutional law “qualifications and limits that themselves have no foundation in the Constitution or the case.”⁽⁷¹⁾ He concluded, “Shelley was a political decision. As such, it should have been made by a legislature.”⁽⁷²⁾

Yet, Shelley was decided on the basis of law. As Matthew Franck has observed, the neighbors in the Shelley case were asking a court to deprive the Shelleys, the black homebuyers who took possession of the house on Labadie Avenue, of their vested title. By contrast, no one has a right “to make oneself a nuisance to one’s hosts.”⁽⁷³⁾ Put in property terms, vested title in fee simple is a fully-specified, in rem right, good against the world. By contrast, a license to visit the home of a neighbor is not a property right at all. It is fully revocable at the pleasure of the host, and in any event does not entail the right to make unreasonable uses.

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.”⁽⁷⁴⁾ The case therefore presented as a conflict between a delivered deed, conveying lawful title, and a private contract, unenforceable against the third-party Shelleys. This was a no-brainer. The Shelleys were entitled to prevail on straightforward application of private law doctrines.

Shelley is mistakenly known as a case about the enforceability of private real covenants, instruments by which vested property rights are created. Chief Justice Vinson gave credence to this view with his rather imprecise introduction of the case. His opinion for the court opened,

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.⁽⁷⁶⁾ The Missouri courts failed to acknowledge that this agreement failed to run to successors-in-title for lack of horizontal privity. Fitzgerald, who sold to the Shelleys, was not a party to the original agreement, but rather was “a white person who was a straw party,”⁽⁷⁷⁾ introduced into the transaction for purposes that are not difficult to infer. Because the parcels had no nexus of title at the time of the original agreement they could not run against successors in title to the burdened residence. Fitzgerald, being a successor-in-title, was free and clear of any legal obligation arising out of the agreement. Had he even been a party to the lawsuit, the neighbors would have had no rights against him, much less to the Shelleys, to whom he had already made conveyance.

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 Shelley decision, clarified Shelley’s reach in his dissent from a later decision of the Court, Barrows v. Jackson.⁽⁷⁸⁾ Vinson distinguished Shelley from Barrows on the ground that “in the Shelley case, it was not the covenants which were struck down but judicial enforcement of them against Negro vendees.”⁽⁷⁹⁾ By contrast, in Barrows the “majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes.”⁽⁸⁰⁾ Vinson’s dissent clarified the imprecision in his Shelley opinion. Shelley involved unsettling a vested right by means of a contract that was unenforceable in property law. The claim right and no-right settled by property law both favored the Shelleys. Shelley was not a case about state courts vindicating lawful private covenants in violation of the Equal Protection clause of the Fourteenth Amendment, as if what is lawful in common law is unlawful in constitutional law.

In Barrows, by contrast, the covenant was enforceable. Horizontal privity was not required because the defendants were the original covenanting parties. So the agreement breached was a straight-forward contract, with a detestable but not criminally-prohibited or otherwise unlawful consideration. No one was deprived of any vested property rights.

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.⁽⁸¹⁾ In contemporary democracies, the totalization of law is not attended by mass slaughter or famine, as it was in twentieth-century Nazi and Communist totalitarian regimes. Tactical totalization of law does not produce such dramatic, immediate carnage. Instead, the consequences unfold more slowly.

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.”⁽¹⁴²⁾ He held up the jury, particularly when adjudicating civil cases, as an Anglo-American institution that empowers citizens and is an enemy to those sovereigns who wish to control society. “Juries, especially civil juries, help to instill into the minds of all the citizens something of the mental habits of judges, which are exactly those that best prepare the people to be free.”⁽¹⁴³⁾

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.⁽¹⁴⁴⁾

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⁽¹⁴⁵⁾ is preserved, the excesses of tactical totalization can be corrected by reference to the persons harmed by those excesses.

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.