Elian Redux-part 2

[Mark Tushnet]

I'm not a scholar of Communism (or Hitlerism) either, but I think it worth noting that there does seem to have been some "slack" in the degree of totalitarian control at some points in those nations' histories.  I have in mind the activities depicted in *Schindler's List* and the existence of samizdat communities. (And the persistence of Solidarity even during the post-1980 Jaruzelski government.)  Of course there was some slack in Southern slave society as well.  What this suggests is that one would really have to know a fair amount about circumstances in contemporary Cuba (and, as I've suggested before, what might happen over the course of a child's next ten years) before one could confidently assert either that sending a person to Cuba was "just like" sending him/her into slavery or that it was not that much different from sending the person to, say, Singapore.

<<< "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU>  4/24  2:54p >>>
        I'm not a scholar of Communism, but to my knowledge

        (1)  Stalin was personally free to do anything he pleased, including
ordering people executed solely on his own say-so.  He did indeed order the
executions of many thousands, and the sending to Siberia of many millions
(and the fact that he imprisoned more than he executed doesn't seem to me
that probative of anything).

        (2)  Stalin was not a remarkably luxury-loving man, and thus
probably did not seize much property for himself.

        (3)  When you are a tyrant and could do whatever you please, you
don't *need* to seize much of others' property, precisely since you can use
any property that you want at any time you want it.  A politician who lacks
total power will want property to be transfered into his own name and will
want his own bank accounts to swell.  A politician who has total power
doesn't need that.  (I assume that the same was largely true of Hitler.)

        (4)  For much the same reason, a definition of slavery borrowed from
a non-totalitarian regime to apply to the relationship of citizens to their
totalitarian master can never be precise, only illustrative.  But the
analogy does seem to me apt -- Stalin's or Hitler's "absolute power" was
closely related to the absolute power of a slave master.

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Monday, April 24, 2000 5:25 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Elian Redux-part 2
>
> pursuing the same point, I ask whether the reference in the Blackstone
> quote that Prof. Eastman
> provides  to "civil relation"
> does not apply to a law of property as such.
> ".... I will leave debate on that question to the Cuba experts.  I will
> note, however,
> Blackstone's definition of slavery:  "that civil relation in which one man
> has absolute power
> over the life, fortune, and liberty of another."  Sounds like a pretty apt
> description of
> communism to me, Castro's version in particular, whether or not some of
> the conditions that..."
> ----
> As I understand Communist law, there are no such "civil relations."  There
> are practical power
> relations of course, but even under the maximal dictatorship of Stalin's
> worst excesses, is it
> really the case that he was free personally to order executed all the
> thousands or millions of
> people he distrusted and personally seize all their property for himself?
> As I recall , didn't
> lots more get sent to Siberia than get executed?  And I don't recall
> hearing that he personally
> got anybody's property.  My point is not to say he was a good guy.  Even
> dedicated Soviet
> communists say he was a terrible guy.  My point is simply to wonder
> whether applying Blackstone's
> definition --which strikes me as a description of private property
> relations-- makes any sense at
> all as an application ot a tyrannical governmental dictatorship where
> property supposedly belongs
> to the state rather than to indidviduals.
>