The United States continues to face widespread protests in the wake of George Floyd’s death. Many have drawn parallels to the protests and riots of 1968. Like Richard Nixon, Donald Trump has called himself the President of law and order. It is peculiar though how the two presidents known for their personal ambivalence toward the law saw their own role in the embodiment of the law. The problem is they confuse the concept of state power and law. There is an important distinction between the two. Yet few discuss its philosophical ramifications. The police, for example, only have an indirect relationship to the law. Their authority is derived not from the law but from the state. This distinction is often lost because the rule of law aligns the power of the state with the aims of the law. This brings about the possibility for democracy. But there remain temptations to undermine the law. And these temptations represent a serious threat to democratic governance.
Hannah Arendt defined totalitarianism as the presence of the state in the absence of law. Many political theorists to this day struggle to understand how the state can exist without law. Hobbes believed the role of the state was to create and enforce law. He writes in the Leviathan, “The desires and other passions of men aren’t sinful in themselves. Nor are actions that come from those passions, until those who act know a law that forbids them; they can’t know this until laws are made; and they can’t be made until men agree on the person who is to make them.” The political thought of Hobbes is often overgeneralized and widely misunderstood. Hobbes is considered a liberal because he valued the role of the law more than the state. However, he gave the state absolute power because he was unable to conceive of the presence of law in the absence of state power.
John Locke offered a resolution to the conflict between law and the state. The Second Treatise of Government was not a response to Hobbes. Indeed, he references Hobbes just twice. But Locke resolves a problem Hobbes was unable to reconcile. Unlike Hobbes, Locke did not believe the state was exempt from the law. For Locke, “Wherever law ends, tyranny begins.” Locke begins to view the social contract then as the origin of law rather than the origin of the state. But this important distinction places the state under the bounds of the law. Authority may make new laws, but their power does not make them exempt from the law.
The rule of law requires the theorist to recognize the law as an independent institution. Its independence from the state brings about an inevitable equality. Its presence establishes a relationship between people to establish rules for behavior. It establishes processes to resolve disputes and disagreements. But so long as it applies to everyone there is an implicit equality in the presence of the law. The rule of law depends on its supremacy over all other institutions. This is a difficult concept to accept. Ryzsard Legutko has called this The Demon in Democracy. He refers to “Totalitarian Temptations in Free Societies.” But the premise of his book is based on a complete misunderstanding of the phenomenon of totalitarianism. Totalitarianism is not an overreach of law but its complete absence.
The state is also an institution. But its size allows for a fragmentation into distinct and independent institutions such as representative assemblies, the military, and the civil service. An institution is not the same as an organization. It establishes a framework for relationships. Institutional frameworks become necessary to confer legitimacy upon authority. An institution is not defined by its norms or traditions, but its unique framework for relationships allows for the development of norms and traditions specific to itself. People act differently in the military, but this does not preclude the capacity for its norms and traditions to evolve over time. Indeed, the social norms of the military today are substantially different from the past, yet it remains recognizable to the common observer.
Political modernization was never synonymous with democratization. It is not necessary to reread Huntington to come to this realization. The emergence of absolutism was an early consequence of political modernization. The centralization of political authority in Europe began as an innovation of the late Renaissance. Intellectuals saw the centralization of authority in a single powerful ruler as a natural consequence of rationalism and reason. It simply made sense. The centralization of resources makes many things possible. But it is difficult to coordinate the interests and priorities of people on a large scale. Eventually any large group breaks down into cliques or factions. Large bureaucracies devolve into smaller organizations.
Totalitarianism is not really the absence of law. Rather it makes the law the servant of the state. The totalitarian state represents the institutional supremacy of the state. But this is a challenge because the growth of the state tends to fragment into new institutions. The institutional supremacy of the state must maintain its power over not just the law but the military, the police, and the civil service. The expansion of state power relies on an unstable foundation. The totality of its power depends on a consistent realignment of institutions toward its aims and goals. Individual authority must become realigned and repurposed toward the aims of the state. Institutional authority must remain in a constant state of dependence upon the state. Any sense of independence may undermine the aims of the state.
Political purges then are not a consequence of totalitarianism, but a necessary component. Arendt recognizes how purges of competent and experienced bureaucrats and leaders limits the capacity of the state. But political purges are not designed to strengthen state capacity. They impose a dependence upon the representatives of the state for their position. And it establishes a constant threat of insecurity which undermines any sense of independence. Yet Arendt recognizes the presence of political purges reinforces the support of the state among younger generations who view them as an opportunity for their own advancement. The generational tension between boomers and millennials is not unique. Every generation is impatient for past generations to make room for their own ambitions. Arendt reflects on how totalitarianism makes the early fulfillment of career ambitions possible, but the price is insecurity once those ambitions are fulfilled.
It is ironic how the supremacy of the state undermines its capacity. But it should not be. Human ingenuity and achievement depend upon the interrelationship of centralization and decentralization. Capitalism, for example, allows for the centralization of economic resources in enormous corporations. Yet its vitality depends on the fragmentation of those resources into different independent companies. The performance of the state likewise is enhanced through the decentralization of authority.
The recent pandemic may cast doubts on the performance of the state under democratic regimes. The centralization of state authority is considered by some as an asset in times of crisis. China is considered emblematic of the importance of centralized state power. But it is important to recognize the limitations of state power under the totalitarian regime of Mao. China has strengthened the power of the state because it has distanced itself from its totalitarian past. It has not democratized, but its authoritarianism is now based on the institutional supremacy of the Communist Party. This important difference gives a sense of independence and security to party members that enhance the capacity of the state. And while there are signs Xi Jinping may want to transform the hostile authoritarianism of the Chinese regime toward totalitarianism, there remain some important differences.
Hannah Arendt saw an important difference between Stalinism and the Soviet Communism under Stalin’s successor Khrushchev. Too often authoritarianism and totalitarianism are used interchangeably, but Arendt forces the theorist to recognize their differences. China remains the great adversary to democratic governance in the world today. But its authoritarian form of governance is not synonymous with totalitarianism. Deng Xiaoping brought about important reforms that paralleled the destalinization of the Soviet Union. Totalitarianism removes any semblance of independence from the officers of state power. Its single-minded aim centralizes authority into a single person. The state becomes personified in the office of a single ruler who is granted absolute power. A direct relationship is established between the ruler and those who are ruled. The natural sense of alienation between the people and the government is extinguished through the direct, personal relationship of a dictator.
Totalitarianism relies on a series of direct relationships to the ruler. Arendt notes how Stalin and Hitler were not the ablest bureaucrats. Trotsky was a better speaker and better at actual governance than Stalin. But Stalin had an advantage in his focus on the careers of others. Stalin and Hitler were bot obsessed with personnel. Stalin was responsible for the rise of so many Bolshevik leaders, his emergence as the successor to Lenin became inevitable. In this light, it becomes obvious that charismatic leadership does not depend on the force of someone’s personality. Rather it is the ability of the leader to transcend their institutional authority to remake the framework of institutions. Charismatic leadership is essential for political reform. A charismatic leader is important for the definition of norms and traditions for nascent institutions. But charismatic leadership also has the power to undermine and destroy institutions.
There are obvious parallels between populism and totalitarianism. But it is difficult to place them in the context of democratic theory. Takis Pappas defines populism as democratic illiberalism. This recognizes the instability of populism where it retains many democratic institutions such as elections but tends to decay into authoritarianism. But there are problems in this definition. The most obvious is it reduces democracy to the presence of competitive elections. Steven Levitsky and Lucan Way have shown how the presence of competitive elections is no guarantee the political system is either free or fair. They refer to these hybrid regimes as competitive authoritarianism. But again, there is no clear sense of what is democracy or what is authoritarianism.
Everything begins to make sense when we recognize democracy as a form of political inclusion. Authoritarianism then becomes a form of political exclusion. It becomes difficult to fully realize democracy because some people make the exclusion of others a condition for their own political inclusion. This paradox at the heart of populism. Populism is democratic to the degree which it brings about the political inclusion of its supporters. But it is undemocratic because their inclusion rests on the political exclusion of others. Totalitarianism may also feel democratic to those who receive a sense of inclusion from the supremacy of the state. But its perpetuation depends on the exclusion of others from governance. Concentration camps and gulags are not a consequence of totalitarianism. They are a necessary component of the totalitarian state. The inclusion of the majority depends on the exclusion and oppression of a minority.
Hobbes saw the value of the state as its ability to establish law. But Arendt makes it clear how the totalitarian state simply ignores the law. Hitler never proposed constitutional reforms. He simply ignored constitutional law. Stalin did not expand state power through constitutional reforms either. The Soviet system had constitutional restraints on his power. Again, he just disregarded them. Some theorists like Legutko sees the power of law as a threat to traditional institutions. He refers to “totalitarian temptations” but as I have already said this is a fundamental misunderstanding of the meaning of totalitarianism. Arendt explains how the presence of state power in the absence of law undermines social institutions. It brings about the atomization of the individual in an environment of fear. Women divorced husbands who faced accusations of disloyalty. The family was dissolved as an effort to protect their children from the jealousy of the state.
The power of the totalitarian state rests not on a dependence on order and law but its capacity to express violence. Hobbes believed the presence of law brought an end to violence. The law establishes a peaceful process for the resolution of conflict. The expression of violence removes a person from the protection of the law. Violent acts are the behavior of the outlaw. Police violence is not an expression of the law, but an expression of state power. The police are given license to behave as an outlaw to enforce the law. But this does not make the violent act an expression of law. It is extralegal. And this makes it a common source of abuse.
The far right believes they are exempt from a decay into totalitarian governance. Libertarians believe totalitarianism emerges from the growth and capacity of the state. Donald Trump is perceived as an opponent of state power because he has removed regulations and reduced the budgets of state agencies. But totalitarianism does not emerge from the growth of a state bureaucracy. The tendency toward totalitarianism becomes increasingly likely each time the rule of law is undermined. For this reason, it is particularly frightening when conservatives believe presidential abuse of power is not an impeachable offense. Ultimately, law and order depend not on the power of the police but the presence of justice in the political system.
jmk, carmel, indiana, email@example.com
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