If we consider this in terms of the history of ideas, it seems extremely unlikely. For the forms of government under which men live have been very few; they were discovered early, classified by the Greeks and have proved extraordinarily long-lived. If we apply these findings, whose fundamental idea, despite many variations, did not change in the two and a half thousand years that separate Plato from Kant, we are tempted at once to interpret totalitarianism as some modern form of tyranny, that is a lawless government where power is wielded by one man. Arbitrary power, unrestricted by law, wielded in the interest of the ruler and hostile to the interests of the governed, on one hand, fear as the principle of action, namely fear of the people by the ruler and fear of the ruler by the people, on the other—these have been the hallmarks of tyranny throughout our tradition.
Instead of saying that totalitarian government is unprecedented, we could also say that it has exploded the very alternative on which all definitions of the essence of governments have been based in political philosophy, that is the alternative between lawful and lawless government, between arbitrary and legitimate power. That lawful government and legitimate power, on one side, lawlessness and arbitrary power on the other, belonged together and were inseparable has never been questioned. Yet, totalitarian rule confronts us with a totally different kind of government. It defies, it is true, all positive laws, even to the extreme of defying those which it has itself established (as in the case of the Soviet Constitution of 1936, to quote only the most outstanding example) or which it did not care to abolish (as in the case of the Weimar Constitution which the Nazi government never revoked). But it operates neither without guidance of law nor is it arbitrary, for it claims to obey strictly and unequivocally those laws of Nature or of History from which all positive laws always have been supposed to spring.
It is the monstrous, yet seemingly unanswerable claim of totalitarian rule that, far from being “lawless,” it goes to the sources of authority from which positive laws received their ultimate legitimation, that far from being arbitrary it is more obedient to these suprahuman forces than any government ever was before, and that far from wielding its power in the interest of one man, it is quite prepared to sacrifice everybody’s vital immediate interests to the execution of what it assumes to be the law of History or the law of Nature. Its defiance of positive laws claims to be a higher form of legitimacy which, since it is inspired by the sources themselves, can do away with petty legality. Totalitarian lawfulness pretends to have found a way to establish the rule of justice on earth—something which the legality of positive law admittedly could never attain. The discrepancy between legality and justice could never be bridged because the standards of right and wrong into which positive law translates its own source of authority—“natural law” governing the whole universe, or divine law revealed in human history, or customs and traditions expressing the law common to the sentiments of all men—are necessarily general and must be valid for a countless and unpredictable number of cases, so that each concrete individual case with its unrepeatable set of circumstances somehow escapes it.
Totalitarian lawfulness, defying legality and pretending to establish the direct reign of justice on earth, executes the law of History or of Nature without translating it into standards of right and wrong for individual behavior. It applies the law directly to mankind without bothering with the behavior of men. The law of Nature or the law of History, if properly executed, is expected to produce mankind as its end product; and this expectation lies behind the claim to global rule of all totalitarian governments. Totalitarian policy claims to transform the human species into an active unfailing carrier of a law to which human beings otherwise would only passively and reluctantly be subjected. If it is true that the link between totalitarian countries and the civilized world was broken through the monstrous crimes of totalitarian regimes, it is also true that this criminality was not due to simple aggressiveness, ruthlessness, warfare and treachery, but to a conscious break of that consensus iuris which, according to Cicero, constitutes a “people,” and which, as international law, in modern times has constituted the civilized world insofar as it remains the foundation-stone of international relations even under the conditions of war. Both moral judgment and legal punishment presuppose this basic consent; the criminal can be judged justly only because he takes part in the consensus iuris, and even the revealed law of God can function among men only when they listen and consent to it.
At this point the fundamental difference between the totalitarian and all other concepts of law comes to light. Totalitarian policy does not replace one set of laws with another, does not establish its own consensus iuris, does not create, by one revolution, a new form of legality. Its defiance of all, even its own positive laws implies that it believes it can do without any consensus iuris whatever, and still not resign itself to the tyrannical state of lawlessness, arbitrariness and fear. It can do without the consensus iuris because it promises to release the fulfillment of law from all action and will of man; and it promises justice on earth because it claims to make mankind itself the embodiment of the law.
This identification of man and law, which seems to cancel the discrepancy between legality and justice that has plagued legal thought since ancient times, has nothing in common with the lumen naturale or the voice of conscience, by which Nature or Divinity as the sources of authority for the ius naturale or the historically revealed commands of God, are supposed to announce their authority in man himself. This never made man a walking embodiment of the law, but on the contrary remained distinct from him as the authority which demanded consent and obedience. Nature or Divinity as the source of authority for positive laws were thought of as permanent and eternal; positive laws were changing and changeable according to circumstances, but they possessed a relative permanence as compared with the much more rapidly changing actions of men; and they derived this permanence from the eternal presence of their source of authority. Positive laws, therefore, are primarily designed to function as stabilizing factors for the ever changing movements of men.
In the interpretation of totalitarianism, all laws have become laws of movement. When the Nazis talked about the law of nature or when the Bolsheviks talk about the law of history, neither nature nor history is any longer the stabilizing source of authority for the actions of mortal men; they are movements in themselves. Underlying the Nazis’ belief in race laws as the expression of the law of nature in man, is Darwin’s idea of man as the product of a natural development which does not necessarily stop with the present species of human beings, just as under the Bolsheviks’ belief in class-struggle as the expression of the law of history lies Marx’s notion of society as the product of a gigantic historical movement which races according to its own law of motion to the end of historical times when it will abolish itself.
The difference between Marx’s historical and Darwin’s naturalistic approach has frequently been pointed out, usually and rightly in favor of Marx. This has led us to forget the great and positive interest Marx took in Darwin’s theories; Engels could not think of a greater compliment to Marx’s scholarly, achievements than to call him the “Darwin of history.”1 If one considers, not the actual achievement, but the basic philosophies of both men, it turns out that ultimately the movement of history and the movement of nature are one and the same. Darwin’s introduction of the concept of development into nature, his insistence that, at least in the field of biology, natural movement is not circular but unilinear, moving in an infinitely progressing direction, means in fact that nature is, as it were, being swept into history, that natural life is considered to be historical. The “natural” law of the survival of the fittest is just as much a historical law and could be used as such by racism as Marx’s law of the survival of the most progressive class. Marx’s class struggle, on the other hand, as the driving force of history is only the outward expression of the development of productive forces which in turn have their origin in the “labor-power” of men. L
abor, according to Marx, is not a historical but a natural-biological force—released through man’s “metabolism with nature” by which he conserves his individual life and reproduces the species.2 Engels saw the affinity between the basic convictions of the two men very clearly because he understood the decisive role which the concept of development played in both theories. The tremendous intellectual change which took place in the middle of the last century consisted in the refusal to view or accept anything “as it is” and in the consistent interpretation of everything as being only a stage of some further development. Whether the driving force of this development was called nature or history is relatively secondary. In these ideologies, the term “law” itself changed its meaning: from expressing the framework of stability within which human actions and motions can take place, it became the expression of the motion itself.
Totalitarian politics which proceeded to follow the recipes of ideologies has unmasked the true nature of these movements insofar as it clearly showed that there could be no end to this process. If it is the law of nature to eliminate everything that is harmful and unfit to live, it would mean the end of nature itself if new categories of the harmful and unfit-to-live could not be found; if it is the law of history that in a class struggle certain classes “wither away,” it would mean the end of human history itself if rudimentary new classes did not form, so that they in turn could “wither away” under the hands of totalitarian rulers. In other words, the law of killing by which totalitarian movements seize and exercise power would remain a law of the movement even if they ever succeeded in making all of humanity subject to their rule.
By lawful government we understand a body politic in which positive laws are needed to translate and realize the immutable ius naturale or the eternal commandments of God into standards of right and wrong. Only in these standards, in the body of positive laws of each country, do the ius naturale or the Commandments of God achieve their political reality. In the body politic of totalitarian government, this place of positive laws is taken by total terror, which is designed to translate into reality the law of movement of history or nature. Just as positive laws, though they define transgressions, are independent of them—the absence of crimes in any society does not render laws superfluous but, on the contrary, signifies their most perfect rule—so terror in totalitarian government has ceased to be a mere means for the suppression of opposition, though it is also used for such purposes. Terror becomes total when it becomes independent of all opposition; it rules supreme when nobody any longer stands in its way. If lawfulness is the essence of non-tyrannical government and lawlessness is the essence of tyranny, then terror is the essence of totalitarian domination.
Terror is the realization of the law of movement; its chief aim is to make it possible for the force of nature or of history to race freely through mankind, unhindered by any spontaneous human action. As such, terror seeks to “stabilize” men in order to liberate the forces of nature or history. It is this movement which singles out the foes of mankind against whom terror is let loose, and no free action of either opposition or sympathy can be permitted to interfere with the elimination of the “objective enemy” of History or Nature, of the class or the race. Guilt and innocence become senseless notions; “guilty” is he who stands in the way of the natural or historical process which has passed judgment over “inferior races,”, over individuals “unfit to live,” over “dying classes and decadent peoples.” Terror executes these judgments, and before its court, all concerned are subjectively innocent: the murdered because they did nothing against the system, and the murderers because they do not really murder but execute a death sentence pronounced by some higher tribunal. The rulers themselves do not claim to be just or wise, but only to execute historical or natural laws; they do not apply laws, but execute a movement in accordance with its inherent law. Terror is lawfulness, if law is the law of the movement of some suprahuman force, Nature or History.
Terror as the execution of a law of movement whose ultimate goal is not the welfare of men or the interest of one man but the fabrication of mankind, eliminates individuals for the sake of the species, sacrifices the “parts” for the sake of the “whole.” The suprahuman force of Nature or History has its own beginning and its own end, so that it can be hindered only by the new beginning and the individual end which the life of each man actually is.
Positive laws in constitutional government are designed to erect boundaries and establish channels of communication between men whose community is continually endangered by the new men born into it. With each new birth, a new beginning is born into the world, a new world has potentially come into being. The stability of the laws corresponds to the constant motion of all human affairs, a motion which can never end as long as men are born and die. The laws hedge in each new beginning and at the same time assure its freedom of movement, the potentiality of something entirely new and unpredictable; the boundaries of positive laws are for the political existence of man what memory is for his historical existence: they guarantee the pre-existence of a common world, the reality of some continuity which transcends the individual life span of each generation, absorbs all new origins and is nourished by them.
Total terror is so easily mistaken for a symptom of tyrannical government because totalitarian government in its initial stages must behave like a tyranny and raze the boundaries of man-made law. But total terror leaves no arbitrary lawlessness behind it and does not rage for the sake of some arbitrary will or for the sake of despotic power of one man against all, least of all for the sake of a war of all against all. It substitutes for the boundaries and channels of communication between individual men a band of iron which holds them so tightly together that it is as though their plurality had disappeared into One Man of gigantic dimensions. To abolish the fences of laws between men—as tyranny does—means to take away man’s liberties and destroy freedom as a living political reality; for the space between men as it is hedged in by laws, is the living space of freedom. Total terror uses this old instrument of tyranny but destroys at the same time also the lawless, fenceless wilderness of fear and suspicion which tyranny leaves behind. This desert, to be sure, is no longer a living space of freedom, but it still provides some room for the fear-guided movements and suspicion-ridden actions of its inhabitants.
By pressing men against each other, total terror destroys the space between them; compared to the condition within its iron band, even the desert of tyranny, insofar as it is still some kind of space, appears like a guarantee of freedom. Totalitarian government does not just curtail liberties or abolish essential freedoms; nor does it, at least to our limited knowledge, succeed in eradicating the love for freedom from the hearts of man. It destroys the one essential prerequisite of all freedom which is simply the capacity of motion which cannot exist without space.
Total terror, the essence of totalitarian government, exists neither for nor against men. It is supposed to provide the forces of nature or history with an incomparable instrument to accelerate their movement. This movement, proceeding according to its own law, cannot in the long run be hindered; eventually its force will always prove more powerful than the most powerful forces engendered by the actions and the will of men. But it can be slowed down and is slowed down almost inevitably by the freedom of man, which even totalitarian rulers cannot deny, for this freedom—irrelevant and arbitrary as they may deem it—is identical with the fact that men are being born and that therefore each of them is a new beginning, begins, in a sense, the world anew. From the totalitarian point of view, the fact that men are born and die can be only regarded as an annoying interference with higher forces. Terror, therefore, as the obedient servant of natural or historical movement has to eliminate from the process not only freedom in any specific sense, but the very source of freedom which is given with the fact of the birth of man and resides in his capacity to make a new beginning. In the iron band of terror, which destroys the plurality of men and makes out of many the One who un
failingly will act as though he himself were part of the course of history or nature, a device has been found not only to liberate the historical and natural forces, but to accelerate them to a speed they never would reach if left to themselves. Practically speaking, this means that terror executes on the spot the death sentences which Nature is supposed to have pronounced on races or individuals who are “unfit to live,” or History on “dying classes,” without waiting for the slower and less efficient processes of nature or history themselves.
In this concept, where the essence of government itself has become motion, a very old problem of political thought seems to have found a solution similar to the one already noted for the discrepancy between legality and justice. If the essence of government is defined as lawfulness, and if it is understood that laws are the stabilizing forces in the public affairs of men (as indeed it always has been since Plato invoked Zeus, the god of the boundaries, in his Laws), then the problem of movement of the body politic and the actions of its citizens arises. Lawfulness sets limitations to actions, but does not inspire them; the greatness, but also the perplexity of laws in free societies is that they only tell what one should not, but never what one should do. The necessary movement of a body politic can never be found in its essence if only because this essence—again since Plato—has always been defined with a view to its permanence. Duration seemed one of the surest yardsticks for the goodness of a government. It is still for Montesquieu the supreme proof for the badness of tyranny that only tyrannies are liable to be destroyed from within, to decline by themselves, whereas all other governments are destroyed through exterior circumstances. Therefore what the definition of governments always needed was what Montesquieu called a “principle of action” which, different in each form of government, would inspire government and citizens alike in their public activity and serve as a criterion, beyond the merely negative yardstick of lawfulness, for judging all action in public affairs. Such guiding principles and criteria of action are, according to Montesquieu, honor in a monarchy, virtue in a republic and fear in a tyranny.