British prime minister Neville Chamberlain declaring that the Munich agreement meant "peace for our time", September 30, 1938. Wikicommons/ Ministry of Information. Some rights reserved.
August 23 is European Day of Remembrance for Victims of Stalinism and Nazism. The day of the year is anything but random: on August 23, 1939, the infamous non-aggression pact between Nazi Germany and the USSR was signed, including the agreement to divide neighbouring countries, like Poland, Finland, and the Baltic States, into “spheres of influence”, ready for annexation.
Interestingly, there is no European Day of Remembrance on September 29, the day on which, in 1938, the UK and France carved up Czechoslovakia and gave a chunk of it to the Nazis. Just as well, really. What would we call it? Day of Remembrance of the Collusion between European Democracy and Nazism would probably not get voted through the European Parliament. Day of Remembrance of the Collusion between European Democracy and Nazism would probably not get voted through the European Parliament.
This may seem like a flippant comment to make in the face of totalitarian oppression and genocide, but it isn’t. Every year, on the European Day of Remembrance for Victims of Stalinism and Nazism, the discussion that seeks to compare the two regimes is reignited: on the one side, there are those who believe both communism and Nazism to have been equally criminal forms of totalitarian government; on the other, those who believe that, despite Stalinist excesses, communism’s revolutionary and emancipatory legacy should be protected from the smear of comparing it to Nazi crimes. While this inconclusive battle is resumed again and again, Liberal Democracy is left out of any historical and political description this discussion generates.
Accidents of history
To be clear: it is far from unwarranted to examine Nazism and Stalinism in parallel, and point out the practices they shared. At the same time, it is obvious that such a parallel examination often seeks to shape the public perception of history and influence political possibilities in the present. It is not, however, for the purpose of salvaging the legacy of actually existing Communism that we should be apprehensive about such efforts – or even, which is arguably a nobler goal, to protect a contemporary left-wing political outlook. It is rather for the purpose of keeping our gaze fixed on the great victor of twentieth century struggles, Liberal Democracy. To be more precise, to put Nazism and Stalinism together as the great totalitarian regimes of the twentieth century does less to enlighten us about either of them than to build a specific narrative for liberal democracy that casts it in the role of a timeless, ahistorical foe of totalitarianism.
One problem with this narrative is that it conveniently leaves out a number of totalitarian regimes across the world, which not only cannot be meaningfully grouped with the “great totalitarianisms”, but which flourished with the full support of western democratic states: Pinochet’s Chile, Pahlavi’s Iran, Suharto’s Indonesia, Batista’s Cuba, Mobutu’s Congo/Zaire, all these atrocious regimes fade out of a picture painted in the stark contrast of “Democracy versus Totalitarianism”, peripheral events of little significance in the great conflict, plain accidents of history.
But this is not just reheated Cold War rhetoric, the “Free World” in new packaging. Nor is it just geopolitics – though geopolitics certainly play a big part: reading the European Parliament resolutions of 2008 and 2009, which established the European Day of Remembrance, one can easily perceive the subtext of consolidating a new Europe that now includes the former Eastern Block countries, firmly pledged to “Western Democracy”. The fact that the 2009 resolution omits individual mentions of a number of twentieth century totalitarian regimes in Europe – such as those in Spain, Portugal and Greece – but finds it pertinent to specifically reference the Ukrainian famine and the Srebrenica massacre, is telling.
The fact that the 2009 resolution omits individual mentions of a number of twentieth century totalitarian regimes in Europe – such as those in Spain, Portugal and Greece – but finds it pertinent to specifically reference the Ukrainian famine and the Srebrenica massacre, is telling in this respect, as is the fact that the precursors of these resolutions were spearheaded by former Eastern Block countries. Still, the problem with Liberal Democracy as a timeless foe of Totalitarianism is much deeper than the questions raised by the realignment of global alliances in the beginning of the twenty-first century.
The problem is, in a nutshell, one of self-understanding: modern democracy is intrinsically bound to totalitarianism. Obfuscating this bond through the narrative now adopted as self-evident in public discourse, namely that democracy is by its nature an enemy to totalitarianism, is detrimental to a reflection on the true evolution of the dominant political sphere, but also on the spaces of exception that arise within it.
A question of sovereignty
Liberal democracy is not reducible to its institutions of government. These can be traced back at least to medieval times, while in the intervening centuries institutional forms appear and disappear, advance and retreat in successive though hardly linear charges, giving rise to a variety of polities. From the Italian Renaissance republics and the Republic of the Seven United Netherlands, the English Bill of Rights of 1689, the Polish-Lithuanian Commonwealth and the Constitution of May 3, to the Revolutions of 1848 and the collapse of the German Empire and Austria-Hungary after World War I, the evolution of governmental institutions that gradually curtail and erode princely and noble privilege is long, convoluted and contradictory. Some aspects of these polities might be recognisable as democratic today. Others, not at all.
It should be obvious – at least if etymology is any hint: that the question at the core of Democracy is not so much one of government, but one of sovereignty. To put it another way, democracy cannot be defined by the presence or absence of one or another institution, such as a legislative assembly or the practice of voting. It has to be defined by the answer to the question: who is represented in the power of the state? From the depths of the European Wars of Religion and Vindiciae contra tyrannos to the Enlightenment and all the way to the democratic constitutions, what is at stake is not government in the strict sense, but sovereign power – or, more specifically, the conditions of participation in sovereign power.
What is it then, if not governmental institutions as such, that makes “rule by the people”, the people as the locus of sovereignty, possible? Giorgio Agamben, in an analysis that is as famous as it is bewilderingly under-referenced in the public debate on the current state of liberal democracy, has proposed that the answer lies in the passage from the “man of rights” to the “citizen” and then immediately to the “nation”, as exemplified in that pivotal moment of political modernity, the Declarations of Human Rights. According to the first three articles of the Declaration of 1789, “Men are born and remain free and equal in rights”; “The goal of every political association is the preservation of the natural and indefeasible rights of man”; “The principle of all sovereignty resides essentially in the nation”. In the words of Agamben, “the principle of nativity and the principle of sovereignty, which were separated in the ancien régime (where birth marked only the emergence of a sujet, a subject), are now irrevocably united in the body of the ‘sovereign subject’ so that the foundation of the new nation-state may be constituted”. Citizenship is here the way in which birth becomes the ground of sovereignty, which is attributed to the nation, therefore producing the citizen as the one who participates in sovereign power, the member of sovereignty. “The fiction implicit here,” Agamben writes “is that birth immediately becomes nation such that there can be no interval of separation between the two terms. Rights are attributed to man (or originate in him) solely to the extent that man is the immediately vanishing ground (who must never come to light as such) of the citizen.”
The impact of this shift in the conception of sovereignty is immediate and shattering: the process of endlessly redefining the boundary between who is a citizen and who is not begins right there with the ever more intricate refinement of rights into active and passive, natural, civil and political, and so on. The issue becomes: who and under which particular prerequisites partakes in sovereignty, who is a member, who is inside and who is outside?
The man of rights
The figure that above all others encapsulates the crisis caused by the endless redefinition of inside and outside is that of the refugee. In the words of Hanna Arendt (from which several of Agamben’s reflections depart), “the conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships – except that they were still human”. Or, to quote Agamben again, “if refugees (whose number has continued to grow in our century, to the point of including a significant part of humanity today) represent such a disquieting element in the order of the modern nation-state, this is above all because by breaking the continuity between man and citizen, nativity and nationality, they put the originary fiction of modern sovereignty in crisis”. Indeed, the refugee flows caused by World War I ignite such a profound crisis in the redefinition process of citizen and human being, inside and outside, that this process in turn produces not only a series of de-nationalisation laws in various countries, but also that emblematic site of political modernity, the concentration camp.
The quintessential ancestral moment of the concentration camp is to be found in the quintessentially experimental democracy: the United States step up their “removal policies” of Native Americans after the 1830s, and establish a number of “reservations” in the following decades. It is undoubtedly significant that the oldest liberal democracy is territorially consolidated not just through genocide, but through genocide that is organised along a classification procedure, a spatial plan, a topological management. Concentration camps are refined in a colonialist/imperialist context through their use by the Spanish in Cuba, the US in the Philippines, and especially the British in the Second Boer War. But it is in Europe that the concentration camp will acquire its definitional character as a place of selection, as the locality where the redefinition of inside and outside reaches its terminal point. It is embraced especially by the German Social-Democrats, who use it to intern refugees after World War I, but also communists and socialists after the Spartacist Uprising of 1919.
The concentration camp is not a Nazi invention. By contrast, its enthusiastic adoption and further refinement by the Nazis should point precisely to the affinity between the Nazi State and modern democracy. In this sense, Nazi extermination camps are an evolutionary step, not an unfathomable leap. Which is true of other things, as well: unthinkable though it seems to most of us today, there are a number of provisions and practices, from the Nuremberg Laws to eugenics, where the curious continuity between democracy and Nazism can be observed.
Three generations of imbeciles
The Nuremberg Laws were more severe versions of de-nationalisation laws, to which many countries – democratic or not – turned after the crisis caused by the World War I wave of refugees: France in 1915, Belgium in 1922, fascist Italy in 1926. It is then less than surprising that Nazi anti-Semitic legislation found supporters even in France, which had seen militant anti-Semitism invade the public sphere in the Dreyfus Affair. The active participation of the Vichy government and especially the French police in the “liquidation” of the Jews of France points to a degree of collusion that cannot be explained solely as a result of imposition.
Connected to the Nuremberg Laws, the laws regulating “hereditary health” (forced sterilisation and prohibition of marriage for those suffering from hereditary disease), which began to be issued very soon after the Nazis came to power, were also far from unique. It stands to reason that the intertwining of politics with the sciences of the human body would be irresistibly attractive to the most extreme biopolitical regime in history. But the incorporation of eugenics into the legal order is not the achievement of the Third Reich. Legislation of sterilisation for the mentally ill appeared in many countries at the end of the nineteenth and the beginning of the twentieth century.
The great pioneer – again – was the United States, where efforts to introduce laws prohibiting marriage and forcing sterilisation for the mentally ill began as early as 1897. The first law of forced sterilisation was passed in Indiana, in 1907. Between the 1920s and the 1960s, many thousands of people were forcibly sterilised in the US – in many cases members of minorities, such as Native, African, and Jewish Americans. Research on sterilisation and euthanasia was funded by the Carnegie Institute. The Rockefeller Foundation did not just fund American eugenics programmes, but also ones in Germany, including that which employed a doctor by the name of Josef Mengele. In 1927, US Supreme Court Justice Oliver Wendell Holmes wrote, in what has deservedly become a notorious decision, that “it is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind… Three generations of imbeciles are enough". His opinion was not lost on the Nazis: they quoted him in their defence at the Nuremberg Trials.
Indeed, the radical way in which eugenics was supported and legislated in the US was an immense inspiration for the Nazis. Adolf Hitler himself said, according to a leading Nazi, that he had “studied with great interest the laws of several American states concerning prevention of reproduction by people whose progeny would, in all probability, be of no value or be injurious to the racial stock”. And in 1934, as the Nazis were intensifying their sterilisation programme, American eugenicist Charles Goethe congratulated his colleague E. S. Gosney with these words: "You will be interested to know that your work has played a powerful part in shaping the opinions of the intellectuals behind Hitler in this epoch-making program. […] I want you, my dear friend, to carry this thought with you for the rest of your life, that you have really jolted into action a great government of 60 million people."
It is true that the US did not go so far as to legislate a euthanasia programme, like the Nazis did, though members of the American medical community did euthanize patients in various institutions. But there were certainly plans for a systematic programme. One that, as a matter of fact, involved the use of gas chambers.
Legality and revolution
This kind of affinity between western democracies and the Nazi State is perhaps reflected in the way that France and the United Kingdom chose to accommodate the rising new actor in European politics. Their accommodations, which led to the Munich Agreement, are usually explained by their reluctance to be drawn into another catastrophic war. Although this explanation is true in part, and is furthermore quite soothing in that it morally justifies their inactivity in the face of German rearmament and provocations in the run-up to 1939, it obscures a crucial point: the bond between democracy and totalitarianism is revealed in the case of the Third Reich in a very specific, structural way.
The organic connection between the Weimar Republic and the Nazi State is officially short-lived and essentially insurmountable. Schematically, it begins with Adolph Hitler, leader of the first party in the Reichstag, though without an overall majority, being assigned, through existing and legal powers of the President of the Republic, to form a government; and it ends with the creation of the mystical figure of the Führer, through the legislation that follows the death of President von Hindenburg, which merged in the person of Hitler the powers of President, Chancellor, and Leader of the German people. The interval between the two is quite short: from January 30, 1933 to August 2, 1934. Yet, in this year-and-a-half, a connection was forged, which was never broken. The Nazi regime was established through two pieces of legislation – before and after the elections of March 5, 1933… Both pieces of legislation are based on already existing legal provisions of the Weimar Republic.
The Nazi regime was established through two pieces of legislation – one before and one after the elections of March 5, 1933. The first was the Presidential Decree “for the protection of People and State”, issued right after the Reichstag fire, on February 27, which suspended basic rights and liberties. The second was the Enabling Act “to remedy the distress of People and Reich”, issued on March 24, which allowed the executive to legislate, and even amend the Constitution, without the involvement of parliament.
Both pieces of legislation are based on already existing legal provisions of the Weimar Republic. The first is based on Article 48 of the Constitution, according to which the President of the Republic could suspend several constitutional articles for reasons of emergency. Article 48 had been invoked already on numerous occasions, during the years of the Republic, to ensure that the inability of any political party to achieve an overall parliamentary majority would not render the executive powerless. This type of constitutional provision, called a “State of Emergency” or a “State of Siege”, where the rule of law is temporarily suspended due to a specific threat, is very common in democratic constitutions and exists up to today in various forms, all over the world.
The Presidential Decree was never withdrawn or replaced, but remained in force until the fall of the regime. This, it has often been said, means that the Third Reich was in effect a twelve-year-long state of emergency. We should add that for all these twelve years this state of emergency remained grounded on a democratic constitutional provision.
The second piece of legislation was also not new, but followed a series of enabling laws that were employed throughout the 1020s. An “enabling” law, meaning a sort of authorisation, is – again – an instrument that is fairly common in democracies – not that different, from the point of view of its juridical form, to what is used today: the authority that a legislative body may grant a government to perform certain actions that may have legislative implications (like, to cite an offhand example, to negotiate and sign bailout packages and austerity memoranda).
Naturally, there has been a huge debate on whether these pieces of legislation were actually constitutional, and whether, if in fact they were, they continued to be constitutional as time passed. It has been stressed – and rightfully so – that the invocation of Article 48 took place under the threat of a Communist revolution, which was supposed to be triggered by the Reichstag fire, while it is plain that there was no imminent revolution, and there remains a strong possibility that the arson was orchestrated by the Nazis. Moreover, the Enabling Act was voted through the Reichstag because Communist deputies had either already been arrested, based on the provisions of the Presidential Decree, or had been prevented from voting by Nazi thugs. Also, the specific limits of the Enabling Act – like the inviolability of presidential and parliamentary authority – were transgressed soon after.
There are probably few more thankless roles than defending the constitutionality of the Third Reich. But that is, in a most profound sense, beside the point. The point is that the Nazi regime itself sought and persistently claimed legality – a legality that sprung from its grounding in the provisions of the democratic order. The point is that the Nazi regime itself sought and persistently claimed legality – a legality that sprung from its grounding in the provisions of the democratic order.
Precisely because the Nazis often called their movement a “revolution”, it might be useful to look at their use of legality under the light of an authentic revolutionary stance. Let us go back to the time of the Declarations of Rights, that is the formation of the juridico-political sphere that still includes us, and let us look at what the Jacobins had to say about legality in the matter of what was to become of the deposed King, Louis XVI.
“Our duty,” said Saint-Just, “is less to judge him and more to condemn him. The forms of procedure do not exist in the Civil Code, but in the Code of the Rights of Man. […] Those who assign some importance to the just punishment of a King cannot found a Democracy. To try a King as a plain citizen! That will astound our impartial descendants. What we call a trial is the application of the law. A law is a relation of justice. What relation of justice can there be, though, between humanity and kings? There are gracious souls who in other times would have said that the trial of a King should not be conducted regarding the crimes of his administration, but for the sole crime of his having been a King. […] For me, there is no middle ground: this man must reign or die”. And Robespierre made the point even clearer: “Louis was King, now Democracy is established. Louis must die, so that the Nation may live”.
What Saint-Just and Robespierre were saying was that the juridico-political sphere of the ancien régime was now irrevocably closed, the legal order produced by the King as sovereign no longer existed. The King’s death was not the end of a judicial process, the legality of which rested on its continuity with an established legal order, but was itself the moment where democratic rule was consolidated precisely by refusing to draw any of its power from the order that preceded it. The only criterion here is success – or, in the words of Robespierre: “Victory will decide whether you are insurrectionists or benefactors of humanity.”
The Nazis’ talk of “revolution” is, by contrast, rhetorical. They never let go of their tether to what came before – they ground the legitimacy of their regime in the legality of the previous order, and never cease to consider it an achievement that they came to power “democratically”.
Liberal democracy is not, of course, totalitarian. But it is bound to totalitarianism: they originate at a juncture that has connected them in a fundamental way, and their conditions of possibility have evolved together. They are genealogically linked. They share affinities, continuities, practices, and even policies.
The idea that Liberal Democracy is by definition a timeless foe of Totalitarianism, whether it is propagated to consolidate the former Eastern Block within the Euro-Atlantic system, or to forge a proud narrative for the deeply problematic political architecture of the European Union, is not only inaccurate, but dangerous: its immediate and debilitating effect is to obscure the spaces of exception, true totalitarian spaces, where rights and law are rendered meaningless and crimes are no longer considered such, and to neutralise any critique levelled against them.
Concentration camps for refugees and migrants, funded by the European Union in North Africa and Turkey, but also operating in European countries; refugee and migrant push-back policies that result in thousands of drownings in the Mediterranean; the separation of migrant children from their parents in the US; the ubiquitous use of “administrative detention”; anti-terrorist legislation that criminalises intent even in the absence of the commission of an act; the immunity of police from appropriate scrutiny in what appears an ever more solid regime of autonomy from accountability; the rekindled public debate not only on who is to be inadmissible to Austrian, Dutch, Italian, French, British, American or Greek territory, but even more fundamentally on who is entitled to inclusion in western society – all these things we are condemned to observe befuddled at how they could be occurring again, unless we begin to understand them neither as circumstantial setbacks due to a temporary bad choice of leaders, nor as accidental deviations from a path to universal human rights, but as intrinsic possibilities woven into the fabric of the political regime under which we live.
 See “Declaration of the European Parliament on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism,” September 23, 2008, here; “European Parliament resolution on European conscience and totalitarianism,” April 2, 2009, here.
 See “Crimes Committed by Totalitarian Regimes,” report on public hearing organized by the Slovenian presidency of the Council of the European Union and the European Commission (April 2008), here; “Prague Declaration on European Conscience and Communism,” June 3, 2008, here.
 Giorgio Agamben, Homo Sacer – Sovereign Power and Bare Life, trans. Daniel Heller-Roazen, (Stanford: Stanford University Press, 1998), 128.
 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979), 299, qtd. in Agamben, 126.
 Agamben, 131.
 Katherine Stolerman, “The American Eugenics Movement: A Study of the Dispersal and Application of Racial Ideologies,” Aisthesis, Vol. 8 (2017), 18.
 Qtd. in Jacques M. Vergès, De la stratégie judiciaire (Paris: Les Éditions de Minuit, 1968, 1981). I only have a Greek translation on hand [I stratigiki tis dikis, trans. M. Kouboura, G. Spanos (Athens: Plethron, 2003)], so the English translation is mine.