Vol. 8 No. 4 (April 1998) pp. 189-191.

TOTALITARIAN AND POST-TOTALITARIAN LAW
by Adam Podgorecki and Vittorio Olgiati (Editors). The Onati International Institute for the Sociology of Law. Aldershot UK: Dartmouth Publishing Company, 1996. 358 pp. Cloth $67.95. Paper $27.95 ISBN I-85521-7979-1.

Reviewed by Albert Melone, Department of Political Science, Southern Illinois University.

This volume contains eleven chapters in four parts. Ten international contributors associated with the Onati International Institute for the Sociology of Law focus upon the fascinating subject of how law may be used to both support and resist totalitarian regimes. I am particularly pleased that the authors of each substantive chapter carefully refer to the theoretical framework set out in Part One of the book. This attention to theory and the loyal following of the original conceptual framework by the individual contributors help readers to comprehend the place of each chapter as this work builds to a conclusion.

Case studies of Italy, Spain and Germany lay out the fascist variations on the totalitarian theme. Each study shows how law was used to serve dictators in their quest to exert political control through law. On the other hand, the example of communist regimes in the post-World War II period demonstrates how revolutionary leaders justified the role of the party through the application of Marxist-Leninist legal principles, rejecting the capitalist domination of law in society.

In her chapter Danuta Gorecki explains that the roots of totalitarianism reach back in some cases to the Byzantine empire, and may be linked to the yearning for national identity and unity. Readers are also treated to good examples of how sound historical and anthropological research, especially in the case of traditional Tolai law, may be employed to cast light not only on the past but to help us appreciate the role of law in modern societies. Indeed, the final part of the book contains four chapters centering on South Africa's treatment of law in the service of a repressive minority, and the continuing saga of post-totalitarian law in the former Soviet Union and Poland.

Most of the contributions contained in this volume possess conceptual clarity buttressed by two fine introductory chapters by Adam Podgorecki and Antonio La Spina. The concluding chapter by Podgorecki knits the book together in a brief and comprehensible manner. The materials, however, are not conducive to a fast read. One is compelled to look up from the text to ponder difficult questions. For sure, this is a sign of a good book; the authors not only present considerable information but also stimulate our sociological imaginations. For example, Vittorio Olgiati's treatment of the role of Italian lawyers in Mussolini's regime activates in me a pre-existing curiosity. I am interested in the role of legal professionals in post-totalitarian societies and what influence, if any, they may have in the transition and consolidation toward democracy.

In democratic polities legal professionals often act as articulate spokespersons for various causes that celebrate the "rule of law not the rule of men." This commitment to a law-governed state may manifest itself in several ways. These include, for example, the manner by which judges should be selected to the bench, support for the judiciary when it comes under attack from other government institutions, politicians, and the public or when forces from whatever quarter challenge or discard constitutional and ordinary legal norms. In this respect, as a society moves from its totalitarian past to a democratic future, the manner by which lawyers play their strategic role in society becomes a subject of political significance.

Post-communist constitutions reflect a general repulsion against the use of law as an instrument in the hands of party functionaries. The new basic documents reflect a commitment to the rule of law and a state founded upon the principle of human rights. The notions of separation of powers and an independent judiciary are central features of these new constitutional arrangements. It is for lawyers both a matter of immediate self-interest and professional dogma that legalism as an ideology is thought central to a good polity. From this perspective, it is vitally important that political actors accept and play by the constitutional rules of the game. But, significantly, legal professionals are the interpreters of the rules, no matter which side of particular controversies may happen to prevail. Herein lies the potentially extraordinary influence of the legal profession in the political life of the new democracies.

The demise of totalitarian regimes is usually accompanied by the rise of political parties, a point that is only incidentally noted by the authors of this book. Yet, constitutionalism means something more than a system of competing parties that too often evidences dysfunctional deadlock. Also, a political system must effectively address substantive issues of justice. Only then may proponents of a successful transition to democracy employ the concept of a law-governed state to fulfill the ends of a civil society, and also avoid backsliding into the totalitarian abyss.

I was somewhat disappointed to find in the entire book only one bibliographical reference to the contributions of Max Weber. Yet, modern democratic legal reformers have adopted implicitly the view of Max Weber and his followers. As political scientist John R. Schmidhauser indicates, a Weberian perspective sees law as a conflict resolution device and not as an instrument in the hands of the powerful (COMPARATIVE JUDICIAL SYSTEMS, 1987: 43). According to this paradigm, law grows out of the recognition that subjective choices yield unstable political orders. It is thought that the law provides more or less objective standards to settle disputes among competing parties. Ottoman Bulgaria, for example, was not too different from Weber's traditional society; one owed obedience to individuals, whether to the Sultan or the military occupation, and appeals to custom and tradition were employed to make the law seem legitimate.

Rulers in traditional societies enjoy a high degree of discretion and the predictability of rules governing economic relations is low. There is often little respect for precedent and each dispute receives particularistic and non-systemic treatment. Communist Bulgaria resembled Weber's charismatic authority system and differed from the traditional type in that each successive charismatic leader made law legitimate. Further, outcomes were often idiosyncratic and justified by some form of revelation; in Bulgaria's case, the word flowed from Moscow in the person of Stalin, Khrushchev, and Gorbachev to Dimitrov, Chervenkov, and Zhivkov in Sofia. Finally, the administration of law under charismatic regimes is often ad hoc and undifferentiated.

In contrast, Weber's third and final ideal type, the legal/bureaucratic authority system, the type sought by democratic forces throughout Eastern Europe, exhibits the characteristic of obedience to government sanctions according to enacted rules and regulations. Decision-making standards are reportedly objective and universal. The law is made legitimate by appeals to A PRIORI legal or constitutional standards, and the judicial process is independent of outside influence. In apposition to the traditional and charismatic ideal types, judicial administration in the ideal legal authority type system is highly bureaucratic or routinized. It employs well-trained legal professionals with limited jurisdiction and their discretion is relatively low. Legal/bureaucratic systems, unlike the two other ideal types, afford considerable predictability of rules.

Given this historical context, the rule of law concept has an important practical consequence. Its implementation is a way to remove political and interpersonal conflicts from the domination of party or bureaucratic structures with a specific ideological content. It is mistaken, however, to assume that within the new so-called democratic order, decision makers will resolve conflicts without ideological influences. Legalism is a more subtle yet pervasive ideological influence. Legal positivists often manifest this viewpoint in terms of their claim of neutral principles and objective rules. Positivists promise the attractive advantage of equal treatment for equals. However, they fail explicitly to address questions of substantive justice, the answers to which the former socialist legal systems purportedly resolved in favor of the working class. By officially depolitcizing dispute resolution with the view of resolving them into judicial questions, legal professionals are in an ideal strategic position to give meaning to the law's content. This point is especially important because of the struggle between forces favoring a commitment to a market economic system and those wedded to some form of social democracy. Will legal professionals contribute to the process of privatization and the creation of a civil society or will they resist change by clinging to the old conceptualization? The answer to this question entails the need to understand the development of legal professions in post-totalitarian societies.

In sum, I have high praise for the efforts of Podgorecki and Olgiati and the contributing authors. They have produced a book that lays out the contours of law in totalitarian and post-totalitarian states, and they stimulate ideas for future research. A careful reading of this book will add depth to our collective understanding of the relationship between law and totalitarian states and stimulates our search for new answers to old but significant questions.
*****************************************************************

Copyright by author.