Totalitarianisms and the establishment of objective legal order

• Author: Dan Claudiu Danisor, Madalina Cristina Danisor
• Position: Faculty of Law, University of Craiova, Romania/Faculty of Law, University of Craiova; researchers at the Center for Fundamental Legal Research, Romania
• Pages: 36-55

Totalitarianisms and the establishment of objective legal order

Professor Dan Claudiu DĂNIȘOR1

Assistant professor Mădălina Cristina DĂNIȘOR2

Abstract

The order of liberal political systems is the result of the dialectic between

objective and subjective. It is based on the understanding of freedom as a formal,

constitutive condition of society. Totalitarianism denies this dialectic, while a ltering at the

same time the objective a nd the subjective meanings of order. This is why they cann ot be

valid legal orders, either in the objective sense, or in the subjective sense. The purpo se of

our study is to analyze the arguments that support the idea that the “concrete” orders of

totalitarian regimes ca nnot be considered objective legal orders. The arguments are

structured in four directions of analysis: 1. basing totalitarian order on legitimacy

eliminates the need for leg ality; 2. totalitarian order is not a system of norms, but one of

forces; 3. in totalitarian orders the distinction between norm and measure is no longer

made; 4. the rules generated by totalitarian order are no longer the result of any

institutionalization. The conclusion that eme rges from these arguments is that in

totalitarian systems objective law does not exist validly. If the Nazi and the communist

languages still retain the term “law”, totalitarian thinking destroys the very co ncept of law.

Keywords: totalitarianism, nazism, communism, liberalis m, legal order, legality,

legitimacy, validity.

JEL Classification: K10, K38

1. Order

How do we recognize a society? Is any group of people a society? Or, in

order to be a society, must such a group meet any additional requirements?

Intuition tells us that society is not just a random gathering of individuals. If we

look at a mass of people gathered on a lawn, we cannot, just because they are there,

qualify them as a society. So as to operate this qualification, that gathering of

people must first of all meet a requirement of perpetuation over time. Society,

unlike a mere gathering of individuals, “perpetuates” itself. As Rawls argued, a

society must be considered “a fair system of social cooperation over time from one

generation to the next”3 [our emphasis].

The second requirement that the group of individuals must meet to become

a society, already present in Rawls’s statement quoted above and also accessible to

elementary intuition, is that a “system of cooperation” must be established within

the “mass” of individuals. From this point of view, there is no “mass” society. A

1 Dan Claudiu Dănișor - Faculty of Law, University of Craiova, Romania, dcdanisor@yahoo.fr.

2 Mădălina Cristina Dănișor - Faculty of Law, University of Craiova; researchers at the Center for

Fundamental Legal Research, Romania, madalinaputinei@yahoo.com.

3 J. Rawls, Justice as Fairness. A restatement, The Belknap Press of Harvard University Press,

Cambridge, 2003, p. 5.

Juridical Tribune Volume 10, Issue 1, March 2020 37

human group reduced to a “mass” is no longer a society. Totalitarianism created

such groups, which raises the question of their qualification as societies.

To be in the presence of a society, the fact of coexistence must overlap

another phenomenon, which will give the group the definitive character of society.

It is more than just a wish to live together. It is about understanding the need for

cooperation in order to live. Society is more than a group in which people coexist.

Coexistence means only sharing some objective elements: several people, a living

space, etc. It creates a community that is “natural”, in the sense that people do not

add anything to the natural group yet, because their grouping is based on the

natural fact of birth, on the natural fact of living on a soil, on the natural fact of

meeting together the primary needs of life (finding food, protection from predators,

etc.), conditions fulfilled by all animal groups, not just the human ones. If we want

human society to be different from the animal group, we must understand that

society is more than a natural community. Humans must add “something” to the

natural community to overcome the status of animal group. Even if, for the

moment, we do not analyze what this “something” is, we can still draw a

conclusion: society is a “creation”; humans add “something” to the animal group,

natural coexistence; they create. This “something” can be generically called

“order”. Society is a “created order”. In this particular sense, it is not natural.

The raw material from which order is built are those human creations that

stabilize and perpetuate inter-individual relations: norms. Society differs from the

natural animal group in that it is a created normative order. People’s society is not

a “community”, but the normative binder that “binds” people. This “binder” is not

natural, in the sense that it did not exist within the natural group, the one based on

birth, therefore on blood relations, on a territory, etc. If man went beyond

animality, this happened because he created law and thus, society; a society that is

no longer a mere natural community. When people return to the natural

community, they fall back into the phase of zoological existence, as happened in

the Middle Ages (which Marx rightly described as the “animal history of

mankind”, “its zoology”4) or during the period of Nazism, when people are brought

back to a blood community.

Law cannot disappear without people turning into animals. In this

particular sense, man is by nature a juridical being. To be human, he must create

some form of law. Only the existence of a created normative order (and in this

sense artificial) assures us that we live in a society and not in a group of predators

or a herd of their victims.

The cooperation system within society, as opposed to the coexistence

system within the natural group, must be “fair”, “just”. It is no longer based on any

natural “superiority”, resulting from birth or force, but on a normative order, which

redistributes “forces” and creates “superiorities”, namely hierarchy. In society,

justice is a constitutive element of the group. It is order in action. Justice re-

produces order. The instrument of this just re-production of order, of just

4 K. Marx, Critique of Hegel's Philosophy of Right (1843), Cambridge University Press, 1970. Ed.

Joseph O’Malley; Translated: Annette Jolin and Joseph O’Malley; Part 5: The Estates §§ 304-307.