Not long ago I started this blog but with considerable trepidation. I wondered what I could write about and whether anything I write about would be of any possible interest to the general but random reader in hyperspace and worried about the time involved. However, rather to my surprise it has been an exciting experience. In this post I will try to reflect on the experience, describe my first ever post and try to develop some fresh connections between notions of legal positivism, democracy, ideology and economic totalitarianism.
The inspiration for my first ever post came from reading Ana França’s article published in the New Statesman on 27 June 2013. She described the way that the democratically elected government in Hungary used its overwhelming majority in parliament to amend existing constitutional protection for basic rights and freedoms, such as for instance freedom of expression, quite against the interests of the citizens and ultimately the long-term national interest.
The government relied on the unchallengeable constitutional authority given it as a consequence of its election claiming democracy as legitimation and justification for the constitutional changes which ultimately, we may suspect, only serve its narrow party interests in order to promote its own power and to entrench its singular ideology at the expense of alternative political views and social interests.
França wrote about the attack on fundamental human values such as free speech and democracy, consequent upon the amendments to the Hungarian constitution. She wrote that the President’s “[o]pponents say he is divorcing Hungary from the rest of democratic Europe. Apart from exerting tight control over the arts sector, Orbán has criminalised homelessness, reserved for himself the right to elect university rectors and approved a law requiring students who accept state scholarships to stay in Hungary”
The report of the conditions in Hungary, reminded me of stories occasionally reported in the press, describing the damage to the legal, social and economic fabric inflicted on societies following the rise of one political party determined to pursue its own exclusionary ideological pathway, to the detriment of social harmony, the rights and expectations of the ‘Other‘ – that is anyone who does not share its own ideologically bounded belief and self-interest. I wondered whether this experience suggests that democracy is suicidal, defined by some kind of totalitarian death wish, or is the increase in totalising thinking and technology characteristic not of democracy but behaviour inculcated by the myth of the global market.
Interestingly, the ideologue will often seek to discount legitimate criticism as empirically untrue, that is as ‘plain stupid’, while according his own ideological conviction the status of absolute unquestionable truth validated by common sense and democratic values. It is noticeable that often extremes of ideological thinking and belief, are claimed to be legitimated on the basis of the democracy, perceived by the ideologue as a procedural process of legitimation rather than a substantive concept embodying a set of human values.
The risk in reading the democratic process in mere procedural terms, instrumentalising the democratic purpose, and operationally legitimates the domination by the elected few of the unelected many, and control of dissenting views and opinions. In the juridical sphere, this is expressed in terms of legal measures implemented to suppress and control the political and social voices and activities of those seeking to promote the politico-social interests of groups promoting alternative opinions and views. We may notice that the difficulty may arise from the conceptual confusion of ‘belief’ in an idea conceived as a ‘recht‘ – that is seen in terms of a ‘claim’ or ‘privilege’ to power as control, rather that construed in terms of a human intellectual and political right, a democratic duty, to question, challenge and test our conceptions of belief and understanding.
Accordingly, it seems that the legal theoretical question that arises in the context of the Hungarian constitutional experience is the connection drawn between legal positivism and the development of totalitarian regimes ultimately to the detriment of shared fundamental human values and freedoms. Very briefly, legal positivism proposes that judicial application and interpretation of law binds the judges to the laws as passed by parliament and consequently the courts are precluded from considerations of any human values and ethics extraneous to statutory (state) law and the clear words of the statute, often expressed as the literal non-contextual interpretation of law.
It follows therefore that legal positivists could argue that democratically elected state actors can be excused from legal responsibility for war crimes and crimes against humanity, for instance, but only to the extent that such constructions of criminal culpability invoke extra-juridical values and moral considerations. Although this seems to be an abhorrent argument, especially as historically we know that such reasoning has been rejected at all trials of war criminals since 1946, the question is whether the rise of totalising thinking encourages the rise of totalitarian ideologies, such as for instance the idea of a global market economy.
More, broadly, the question seems to revolve around the scope and limitations on democracy in particular whether a democratic mandate coupled with legal positivism ultimately facilitates rise of totalitarian regimes totalised thinking and doing, risking the transmutation of the idea of democracy from a vehicle for expression of our fundamental values as humans to the notion of the democracy as an instrumental process legitimating intractable globalised ideologies. We should also ask whether there lies an implicit, or even an express, duty on law to express and enforce foundational moral ideals and human values, for instance values and fundamental principles articulated in aspirational documents such as the European Convention on Human Rights and whether international legal documents of this nature become meaningless as guardians of freedom and democracy.
Under Article 2 of the Treaty on European Union each EU member state affirms the founding values of the Union and legally agrees as a condition of membership of the Union, to “…respect human dignity, democracy, equality, the rule of law…“ For this reason it is argued that the basic ‘European common values’ are values of the rule of law and democracy underpinned by the respect for fundamental human rights and freedoms as enshrined in the Charter of Fundamental Rights. This appears to be, at least theoretically, a sound if rather grand, juridical construction which may well help in stemming the development of a totalitarian regime from within a particular state. A reaction located in uniquely European 20th century political experience. However, our knowledge and experience of supra-national totalitarianism especially when it takes the form of a global economic ideology of the market, particularly of the neo-liberal bent, is dangerously limited.
Recently George Monbiot drew attention to the threat to democracy and national self-determination posed by the Transatlantic Trade and Investment Partnership, an economic instrument with serious constitutional implications. This is an agreement currently being negotiated between European Union states and United States purportedly designed to equalise the regulatory differences between the two trading blocks. One assumes that the principles underlying the negotiations are founded in the ideology of economic growth, sustainability and trade in interests of stability, predictability and property- sentiments that even Orbán’s government is unlikely to disagree with.
Monbiot writes: “It [the agreement] would allow a secretive panel of corporate lawyers to overrule the will of parliament and destroy our legal protections.” This is supported by a quote from one investment arbitrator involved in investor-state arbitrations, who says that “When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all … Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament.”
If this is an accurate portrayal of the effect of the ‘investor-state’ mechanism of dispute resolution it would seem to illustrate vividly the risk to human values, rule of law and democracy posed by an ideology blindly perceived as being ‘true’ bolstered by ‘common sense’- in short a form of new economic totalitarianism.
In bleak contrast to the legal dynamics of the European Convention on Human Rights, counterpoising the rights of the individual citizen with the interests of the political state, according to Monbiot, the Transatlantic Trade and Investment Partnership does not provide for any “corresponding rights for citizens. [The individual]can’t use these tribunals to demand better protections from corporate greed. As the Democracy Centre says, this is “a privatised justice system for global corporations.”
Finally, in the light of such developments, we may wish to consider setting up an International Court for Economic Crimes to try economic crimes against humanity, along the lines of the tribunals established after 1945 to try war criminals.
 Ana França ‘Can Free Expression Survive in Hungary?’ New Statesman 27 June 2013. Available at http://www.newstatesman.com/politics/politics/2013/06/can-free-expression-survive-hungary
 For detailed discussion of this point see: Lon L Fuller, “Positivism and Fidelity to Law – A Reply to Professor Hart” Harvard Law Review 71 (1957-58) and Stanley L Paulson “Lon L Fuller, Gustav Radbruch, and the “Positivist” Theses” Law and Philosophy 13: 313-259, 1994.
 I use the words ‘totalising’ and ‘totalitarianism’ in Hannah Arendt’s sense to designate the domination of the public, the personal space and individual mind space by one overbearing ideology and political power to the exclusion of any sense of self-determination individual autonomy. See Hannah Arendt The Origins of Totalitarianism 1951. You can read a copy of her book at: https://ia600509.us.archive.org/7/items/originsoftotalit00aren/originsoftotalit00aren.pdf
 George Monbiot ‘A Global Ban on Left Wing Politics’ 4 November 2013 http://www.monbiot.com/2013/11/04/a-global-ban-on-left-wing-politics/
 Perry, Sebastian (2012) STOCKHOLM: Arbitrator and counsel: the double-hat syndrome, Global Arbitration Review, Volume 7 – Issue 2, 15 March, http://www.globalarbitrationreview.com/journal/article/30399/stockholm-a… [Emphasis added.]
 Thomas McDonagh ’Unfair, Unsustainable and Under the Radar’ The Democracy Centre 2013 http://democracyctr.org/wp/wp-content/uploads/2013/05/Under_The_Radar_English_Final.pdf
Suggested citation: J Ressel ‘On Blogs and Totalitarianism’ Law, Cult. & Ideas Blog (24 November 2013) (available at https://lawcultureblog.wordpress.com/ )