Dictatorship

New Trajectories in Law

Dimitrios Kivotidis

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000345230
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

This book analyses the institution and concept of dictatorship from a legal, historical and theoretical perspective, examining the different types of dictatorship, their relationship to the law, as well as the analytical value of the concept in contemporary world.

In particular, it seeks to codify the main theories and conceptions of 'dictatorship', with the goal of unearthing their contradictions. The book's main premise is that the concept of dictatorship and the different types of the dictatorial form have to be assessed and can only be understood in their historical context. On this basis, the elaborations on dictatorship of such diverse thinkers as Carl Schmitt, Donoso Cortes, Karl Marx, Ernst Fraenkel, Franz Neumann, Nicos Poulantzas, and V. I. Lenin, are discussed in their historical context: 'classical and Caesaristic dictatorship' in ancient Rome, 'dictatorship' in revolutionary France of 1789 and counterrevolutionary France of 1848, 'fascist dictatorship' in Nazi Germany, and 'dictatorship of the proletariat' in Russia of 1917. The book contributes to the theory of dictatorship as it outlines the contradictions of the different typologies of the dictatorial form and seeks to explain them on the basis of the concept of 'class dictatorship'. The book's original claim is that the dictatorial form, as a modality of class rule that relies predominantly on violence and repression, has been essential to the reproduction of bourgeois rule and, consequently, of capitalist social relations. This function has given rise to different types and conceptualisations of dictatorship depending on the level of capitalist development.

This book is addressed to anyone with an interest in law, political theory, political history and sociology. It can serve as core text for courses that seek to introduce students to the institution or theory of dictatorship. It may also serve as a reference text for post-graduate programs in law and politics, because of its interdisciplinary and critical approach.

1Historical and theoretical foundations

The popular understanding of dictatorship refers to a type of regime that is oppressive because of its reliance on the use of violence. Since all modern states in the last instance rely on violence (the state itself being the apparatus that monopolistically exercises violence in a legitimate manner), violence in itself cannot be the distinguishing characteristic of a dictatorship. Violence is accompanied by arbitrariness and an absence of respect for individual rights and due process (i.e. the absence of constitutional limits to the exercise of public power). Furthermore, perhaps the most commonly understood characteristic of the idea of dictatorship is its anti-democratic nature. Dictatorship is identified with a lack of representative institutions and the concentration of power in the hands of a ruler, the dictator. Personal rule and concentration of power have long been considered as the essential characteristics of the common-sense meaning of dictatorship.¹ The fact that usually a dictatorship is signified just by the name of the dictator (Hitler, Mussolini, Franco, etc.) attests to this.

1Carl Schmitt, Dictatorship (London: Polity Press, 2013), xxxviii.

If modern-day, common-sense understanding of the idea of dictatorship opposes democratic government to it, this was not always so. In the days of consolidation of bourgeois power, during the period of the forging of the modern bourgeois states, dictatorship was seen as an aspect of the democratic movement.² In fact, dictatorship was used in a pejorative way to describe representative institutions themselves. During the French Revolution, the Girondins used the term to denounce the ‘dictatorship of the National Convention’ (i.e. the exemplary institution of revolutionary democracy), or the ‘dictatorship of the Commune of Paris’, which was the most democratic expression yet seen of a mass movement from below.³ In 1848 Donoso Cortés, in his famous speech on dictatorship, used the term to describe the British Parliament whose omnipotence is precisely what constitutes ‘dictatorial power’.⁴ In the 1850s dictatorship was not opposed to democracy and was not a synonym for despotism because the ruling class considered democracy as appalling as dictatorship (if not more). After all, this conception survives in the ideas of ‘elective dictatorship’ and ‘tyranny of the majority’, which are still popular in British and American jurisprudence.⁵

2Hal Draper, The Dictatorship of the Proletariat from Marx to Lenin (New York: Monthly Review Press, 1987), 14. 3Ibid., 12. 4Cortés, Speech on Dictatorship, 47. 5See indicatively Basil S. Markesinis, ‘Elective Dictatorship’, 30 Parliamentary Affairs, 324; Jeremy Waldron, ‘The Core of the Case against Judicial Review’, 115 Yale Law Journal 1346.

So, dictatorship has been conceived both as the opposite of democracy and as an aspect of it. The reasons for this contradiction have been discussed by various theorists.⁶ There are two main arguments put forward to explain this discrepancy. According to the first, the use of the concept to describe regimes and forms of exercise of public power is determined by political purposes. The meaning of the concept changes and follows the different historical modes of exercise of public power and class rule, reflecting the struggle between competing social forces. For instance, it has been argued that the identification of dictatorship with despotism and its opposition to democracy was consolidated in the process of the anti-Soviet campaign by the hegemonic states in the capitalist world.⁷

6See especially the works of Peter Baher and Melvin Richter (eds.), Dictatorship in History and Theory: Bonapartism, Caesarism, and Totalitarianism (Cambridge: Cambridge University Press, 2004); Draper, The Dictatorship of the Proletariat; Schmitt, Dictatorship. 7Draper, The Dictatorship of the Proletaria, 7.

According to the second, the duality of meaning is inherent in the concept itself. There is a typology of dictatorship stemming from its original meaning in the Roman institution of dictatura. This refers to two types of dictatorship. On the one hand, there is the classical or original Roman dictatorship, which refers to an exceptional but constitutional institution whereby powers are conferred to a magistrate according to precisely defined procedures to deal with an emergency. The contemporary equivalent for this dictatorship would be the constitutional provision for a state of siege or a state of emergency. On the other hand, dictatorship refers to regimes whereby power has not been regularly conferred and the legal order is overthrown rather than safeguarded.⁸ The contemporary equivalent for this type of dictatorship would be any regime of arbitrary rule that was installed via an overthrow of the normal legal institutions.

8See Baher and Richter, Dictatorship in History and Theory, 22; and Claude Nicolet, ‘Dictatorship in Rome’, in Baher and Richter (eds.), Dictatorship in History and Theory, 263.

This chapter begins the examination of the typologies of dictatorship while emphasising the socio-political context where they originated. The theme explored in this chapter is the claim by various theorists that there are two types of dictatorship and that there is an equivocal relationship between the two. The original argument pursued here is that this equivocal relationship is inevitable. The analysis will begin with the existing theoretical discussions of the Roman institution of dictatorship and continue with Carl Schmitt’s dualism of commissarial and sovereign dictatorship.

Roman dictatorship

It can be argued that the existence of two types of dictatorship originated in ancient Rome. The dictatura was an important institution of the Roman Republic, but it came to signify two very different political realities. Initially, it referred to the exceptional magistracy that was legal and constitutional and was used roughly seventy-six times between 501 and 202 bc, before it vanished for 120 years. In 82 bc the institution of dictatorship was revived by Sulla and later by Julius Caesar, in the two most famous instances of dictatorship of the antiquity. However, this revival already brought the institution close to the modern meaning of dictatorship in the sense of a regime based on personal rule and power concentration. The former paradigm has been known as classical dictatorship and the latter as Caesaristic dictatorship. Therefore, the claim has been made that the discrepancy we identified above is due to the semantic slippage rooted in Roman history itself.⁹

9Nicolet, Dictatorship in Rome, 275.

To examine this claim, let us start by identifying the main features of the classical Roman dictatorship. First, it was constitutional and legal: there were precise circumstances that called for its invocation. On the one hand, was a series of precisely defined but uncommon duties (presiding over the Comitia in the absence of competent magistrates, performing the ancient propitiatory ritual of the clavus annalis, presiding over certain festivals, exceptional recruitment of the Senate, etc.); on the other hand, it would take form according to the formula, ‘if a war or very substantial civil unrest arises’, that is, in the event of a crisis of ‘the common good’.¹⁰ Thus, the second main characteristic of dictatorship is the specific mandate to provide for the common good. This is perhaps the most important characteristic, as the interpretation of what may promote the common good becomes determinant of the width or narrowness of the mandate. It is for this reason that the doctrine of the common good has been characterised as the ‘last refuge of despotism’.¹¹ In the following sections I argue that the doctrine of the ‘common good’ is precisely the locus of equivocation (i.e. the gate that leads from the first to the second type of dictatorship).

10Ibid., 265. 11Ibid., 276.

The third characteristic of the classical dictatorship is its temporariness. Dictatorship lasted for a maximum of six months, but usually the dictator would hand his power back as soon as the specific task was accomplished. The dictator had to be nominated by one or both of the consuls. However, in 211 bc, on the advice of the Senate, the people were asked to elect a dictator, to some degree, directly.¹² This new element in the process of nomination signifies a change that foreshadowed the Caesaristic type of dictatorship that strongly relied on plebiscitarian representation. Julius Caesar’s rule sought the support of the Italian public and of the urban plebs, through largesse (distributions, games, etc.), as well as through an elevation of the network of his clientele almost to the world scale. Nevertheless, his rule does not exhibit more advanced elements of plebiscitarianism of the type of ‘consensus omnium’ one encounters in Caesar Augustus’s rule.¹³ The last main feature of classical dictatorship, and arguably the distinguishing element between this and the Caesaristic type that emerged 120 years after its disappearance, was its limited nature: the dictatorship could not make new laws.¹⁴ The dictator’s jurisdiction was primarily military and not civil. Their mandate was to preserve the legal order and not to alter it. This is mainly the reason why classical dictatorship has been characterised not as a form of government in itself, but as an institutional component of a broader republican regime.¹⁵

12Ibid., 267. 13Ibid., 275. 14Ibid., 266. See also Hal Draper, Karl Marx’s Theory of Revolution: Volume 3 (New York: Monthly Review Press, 1986), 12. 15Andreas Kalyvas, ‘The Tyranny of Dictatorship: When the Greek Tyrant Met the Roman Dictator’, 35 Political Theory, 412, 417.

So if classical dictatorship is merely a component of a regime, Caesaristic dictatorship can be characterised as a type of regime. Sulla’s dictatorship was the first example of this. According to Appian of Alexandria (95–165 ad), after his invasion of Rome in 82 bc, and following the death of the two consuls during the civil war, Sulla ‘convinced’ the Senate to appoint an interrex and subsequently ‘persuaded’ the interrex not to organise and supervise elections for new consuls but to appoint him dictator for an indefinite period and with legislative powers.¹⁶ In the absence of consuls, the law that appointed Sulla was approved by the centuriate assembly. His mandate was provisional but was not strictly or temporally limited. His appointment as dictator legibus scribundis et rei publicae constituendae meant that he had the mandate to ‘draw up laws and restore a constitution to the State’.

16Ibid., 424. See also Nicolet, Dictatorship in Rome, 269.

As a result, Sulla’s dictatorship was a dictatorship for an indefinite period and with legislative powers. It is evident that ...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1 Historical and theoretical foundations
• 2 Dictatorship and consolidation of bourgeois power
• 3 Dictatorship and reproduction of bourgeois power
• 4 Dictatorship and the supersession of the bourgeois state
• 5 Contribution to the theory of dictatorship
• 6 Theses on the concept of dictatorship
• Index