The Dual State Reframed: Ernst Fraenkel's Political Clients and his Theory of the Nazi Legal System

Abstract

From 1936 to 1938 the prominent political scientist Ernst Fraenkel wrote the first draft of his classic analysis of the National-Socialist legal system, The Dual State. The dual state theory describes the steady encroachment of the ‘prerogative state’, which was lawless and arbitrary, on the ‘normative state’, which consisted of traditional and nazified legal institutions. Fraenkel developed his theory in large part based on his own legal practice in Germany between 1933 and 1938, when he often represented leftist defendants against political prosecutions. While his legal practice helped inspire his theory, his book reports nothing about his own cases. But scattered information provides glimpses at a handful of them. This article addresses what Fraenkel’s actual courtroom experiences show about the prerogative and normative states, the nature of each, and their interplay with each other. While the theory focuses on the victory of the prerogative state – on the way...