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.
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