Totalitarianisms and the establishment of objective legal order

AuthorDan Claudiu Danisor, Madalina Cristina Danisor
PositionFaculty of Law, University of Craiova, Romania/Faculty of Law, University of Craiova; researchers at the Center for Fundamental Legal Research, Romania
Totalitarianisms and the establishment of objective legal order
Professor Dan Claudiu DĂNIȘOR1
Assistant professor Mădălina Cristina DĂNIȘOR2
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 next3 [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,
2 Mădălina Cristina Dănișor - Faculty of Law, University of Craiova; researchers at the Center for
Fundamental Legal Research, Romania,
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 zoology4) 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.

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