Strategic and Tactical Totalization in the Totalitarian Epoch
5 British Journal of American Legal Studies 57 (2016)
37 Pages Posted: 16 Jul 2016
Date Written: May 2014
The article examines why private law is incompatible with totalitarian projects. It briefly examines the Socialist jurisprudence of the former Soviet Union and its treatment of private law. It offers an explanation why private law might be inimical to the jurisprudence of the Soviet Union and totalitarian regimes more generally. It next examines the totalization of law accomplished by segregationist regimes in the mid-twentieth century, comparing and contrasting those regimes with totalitarian regimes. Then it turns to examine instances of what I call “tactical totalization” in our own day. Examining totalization of law as a jurisprudential, rather than political, phenomenon reveals how the totalization of legal norms can and does occur in liberal democracies, though with substantially different implications than in totalitarian regimes.
Keywords: totalitarianism, totalitarian jurisprudence, socialist jurisprudence, private law, private ordering, constitutional law, jurisprudence, segregation, equality, rights, civil rights, practical reason, pluralism
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