Totalitarianisms and the establishment of objective legal order Abstract: 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 altering at the same time the objective and the subjective meanings of order. This is why they cannot be valid legal orders, either in the objective sense, or in the subjective sense. The purpose of our study is to analyze the arguments that support the idea that the “concrete” orders of totalitarian regimes cannot be considered objective legal orders. The arguments are structured in four directions of analysis: 1. basing totalitarian order on legitimacy eliminates the need for legality; 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 emerges 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 concept of law

Danisor, Dan Claudiu; Danisor, Madalina Cristina

Totalitarianisms and the establishment of objective legal order Abstract: 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 altering at the same time the objective and the subjective meanings of order. This is why they cannot be valid legal orders, either in the objective sense, or in the subjective sense. The purpose of our study is to analyze the arguments that support the idea that the “concrete” orders of totalitarian regimes cannot be considered objective legal orders. The arguments are structured in four directions of analysis: 1. basing totalitarian order on legitimacy eliminates the need for legality; 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 emerges 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 concept of law

Dan Claudiu Danisor () and Madalina Cristina Danisor ()
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Dan Claudiu Danisor: Faculty of Law, University of Craiova, Romania
Madalina Cristina Danisor: Faculty of Law, University of Craiova; researchers at the Center for Fundamental Legal Research, Romania

Juridical Tribune - Review of Comparative and International Law, 2020, vol. 10, issue 1, 36-55

Keywords: totalitarianism; nazism; communism; liberalism; legal order; legality; legitimacy; validity. (search for similar items in EconPapers)
JEL-codes: K10 K38 (search for similar items in EconPapers)
Date: 2020
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