Fragment On Totalitarian Lawlessness

In her The Origins of Totalitarianism, Hannah Arendt explores the conceptual phenomenology of totalitarianism. In the final part of her brilliant addition to political thinking, Arendt critically explicates the totalitarian political system and its functioning. One such distinguishing feature of totalitarianism, Arendt claims, is in fact a certain paradoxical lawlessness. This she pens as paradoxical because of the exceptionally punitive, nasty, brutish and sadistic terror-filled framework totalitarianism both generates and finds its conceptual unity within. Nevertheless, despite the existence of a juridical framework at play within totalitarian systems (and thus the ’presence’ of statute, common or decree-issued law) an embedded lawlessness is a key conceptual quality of totalitarianism.

For Arendt, the lawlessness that is the essence of tyranny - in contradistinction to the lawfulness of non-tyrannical government – became a necessary condition of the phenomenological origins of totalitarianism. This resulted subsequently from both imperial administration and governance in the eighteenth and nineteenth centuries, being part of Arendt’s now famous ‘boomerang effect’ thesis.[1] She explains the totalitarian concept of law in the following passage:

“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 fulfilment 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.”[2]

Such a lack of consensus iuris is what makes totalitarianism appear tyrannical in its immediate experience, despite its surpassing of such a condition to the institution of government by the twin pillars of ideology and terror. Nonetheless, being ultimately within the discipline of political theory, this stipulation by Arendt lacks any particular illustrative flourishes in historical evidence. 

Interestingly, in the final part of his seminal and famed trilogy, The Third Reich at War, Professor Sir Richard Evans indeed evidences Arendt’s claim. In this, Evans details and lays out the very lack of consensus iuris at the heart of the Nazi legal system. Here, Evans affirms:

“Hitler was unable to provide any kind of overall direction of domestic affairs, so that government departments found it increasingly necessary to issue their own regulations on matters of detail, often without consulting other departments about their contents. In 1941, for example, 12 formal laws were passed, after consultation with ministries, 33 decrees issued by Hitler, 27 decrees were ordered by the Ministerial Council for the Defence of the Reich, and 373 regulations and orders were issued by individual government departments. In the absence either of a formal cabinet or of any consistent direction by Hitler, government was becoming more and more fragmented.”[3]

Such a ‘fragmentation’ is here synthesised, for Evans, with the legislative gaps, cracks and openings that arise as a result of ‘the leader principle’, i.e. the absolute and god-like authority of the leader and the full juristic legitimation of their illocutionary utterances.[4] This principle gained mass-meaning and recognition through the signifier ‘der Führer’; a uniquely attributable and meaning-creating representation of Hitler over a century since his first appearance on the political stage. Consequently, as a result of the very effect of the leader principle, its modality of authority generates the very gaps and cracks that the totalitarian governmental and legislative machine seeks to fill, both causing and generating further fragmentations of its own edifice.

This, unsurprisingly, is already disclosed by Arendt herself, although without the empirical and positive historical evidence that Evans provides; at least in the case of Nazi Germany. Arendt maintains that:

“The Leader principle does not establish a hierarchy in the totalitarian state any more than it does in the totalitarian movement; authority is not filtered down from the top through all intervening layers to the bottom of the body politic as is the case in authoritarian regimes. The factual reason is that there is no hierarchy without authority and that, in spite of the numerous misunderstandings concerning the so-called ‘authoritarian personality,’ the principle of authority is in all important respects diametrically opposed to that of totalitarian domination. Quite apart from its origin in Roman history, authority, no matter in what form, always is meant to restrict or limit freedom, but never to abolish it. Totalitarian domination, however, aims at abolishing freedom, even at eliminating human spontaneity in general, and by no means at a restriction of freedom no matter how tyrannical. Technically, this absence of any authority or hierarchy in the totalitarian system is shown by the fact that between the supreme power (the Führer) and the ruled there are no reliable intervening levels, each of which would receive its due share of authority and obedience. The will of the Führer can be embodied everywhere and at all times, and he himself is not tied to any hierarchy, not even the one he might, have established himself.”[5]

As such, we are able to see that lawlessness, the leader principle, bureaucracy, terror and the boomerang effect in relation to imperialism all constellate and manifest within the totalitarian juridical and legal structure, opening the space for atrocities to occur. 

[1] For the sake of notation, it is often forgotten that Arendt details a distinction between two modes of boomerang effect: of (a) national imperialism, and (b) totalitarian imperialism. The boomerang effect most often discussed in association with Arendt concerns the former, wherein the racialised and lawless character of the imperial political episteme is mechanised against the citizen population of the nation-state from whence it initially came, adding to the development of totalitarianism. What is often neglected or forgotten is the latter. Here, the boomerang-like causal relationship of the latter is the inverse of the former. Namely, the multitude of individual acts of resistance in the imperial satellites of totalitarian states - which would be grasped by Arendt as belonging to the realm of the vita activa and political action par excellence in world defined by the foreclosure of the political itself – lead to ‘stirrings’ of unrest and resistance in the homeland. Such action forces a totalitarian government to take combative measures against further unrest. Concerning the boomerang effect of national imperialism, it is the episteme and agency of the imperialist that boomerangs back to rigidify and manifest such logic and action within its ‘home’ nation-state, becoming a necessary basis and foundational quality of totalitarian rule. Whereas, for totalitarian imperialism, it is the resistive agency of the imperial subject as an active political agent in the face of the foreclosure of the political, which boomerangs back to the totalitarian homeland, generating attempts at the re-ignition of a previously extinguished political sphere. Hence, it is salient to recall that although Arendt highlights the boomerang effect as a necessary condition of totalitarianism, she indicates that it forms a quality of phenomenal resistance to totalitarian governance in equal measure. Thus, it would be wrong to cast Arendt’s thesis as a value judgement against ‘boomerang effects’ in the main as a whole. For more information, see: Hannah Arendt. (1958). The Origins of Totalitarianism. Cleveland and New York: Meridian Books. pp.504-505.

[2] Hannah Arendt. (1958). The Origins of Totalitarianism. Cleveland and New York: Meridian Books. p.462.

[3] Richard Evans. (2009). The Third Reich at War. New York: Penguin Press. pp.510-511.

[4] As a side note, if the central disciplinary revelation of political theology is to declare that the state takes on the role and function of (a) god in modernity, then the ideological demagogue or leader is, perhaps Christ-like or messianic in quality in the same vein that Kantorowicz lays out the French medieval kings as.

[5] Hannah Arendt. (1958). The Origins of Totalitarianism. Cleveland and New York: Meridian Books. pp.404-405.