The Dual State

The Dual State by Ernst Fraenkel.

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The Dual State by Ernst Fraenkel is an important contribution to both political philosophy and understanding the Nazi regime. It has been surprisingly forgotten in recent years, which is a shame because Fraenkel's theory of the Dual State provides a way of understanding current events in America and the world. One scholar who has not forgotten Fraenkel is Stanley Payne, the historian of Fascism, who identifies Fraenkel as a leading theoretician of the Dual State theory.

Fraenkel was a leftwing Berlin lawyer born to a Jewish family in 1898. He practiced in Weimar Germany and under the Nazi regime until he emigrated to the UK in 1938 and then to the US in 1939. The fact that he was permitted a limited right to practice up to 1938 because he had been a German soldier during World War I is an interesting point that underscores the significance of that exemption for Jews. Moreover, his experience as a Jewish lawyer gave him direct insight into the dual systems which might have been less apparent to other Germans. As the Introduction explains: “His activity as a practising attorney in Berlin from 1933– 38 provided the close and continuous contact with the legal system of National-Socialism necessary to check and recheck his generalizations by confronting them with the reality of practice.”

Fraenkel himself explained:

“Despite being Jewish, I was permitted, due to my military service during the [First World] War, to practice at the bar even after 1933. The ambivalence of my bourgeois existence caused me to be particularly attuned to the contradictoriness (“ Widersprüchlichkeit”) of the Hitler regime. Though, legally speaking, an equal member of the bar, wherever I went, I was nonetheless subject to harassments, discriminations, and humiliations that emanated exclusively from the staatstragende Partei [literally: state-sustaining political party, i.e., the ruling Nazi party]. Anyone who did not shut his or her eyes to the reality of the Hitler dictatorship's administrative and judicial practices, must have been affected by the frivolous cynicism with which the state and the [Nazi] party called into question, for entire spheres of life, the validity of the legal order while, at the same time, applying, with bureaucratic exactness (“ mit bürokratischer Exaktheit”), exactly the same legal provisions in situations that were said to be different (“ anders bewerteten Situationen”).”

Fraenkel wrote a first version of The Dual State in 1941 and then a revised version in 1974. The first version was apparently more informed by Marxist theory than the second. In either case, the version I read - the 1974 version - retains some of its Marxist orientation, but it should not be discounted on that account. The economic/class analysis contains some valuable insights.

Fraenkel's main thesis is that the Nazi state consisted of two states. One state was a “Rule of Law” State (“Rechtsstaat”), also known as the “Normative State” (“Normenstaat”), that recognized an orderly and predictable application of formal, announced rules that were predictable and impartial. The other state was a “Prerogative State” (“Massnahmenstaat”) where political expediency determined the rules on an ad hoc basis. Moreover, the jurisdictional line dividing the Prerogative State from the Rule of Law State.

Fraenkel explains the difference:

“By the Prerogative State we mean that governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees, and by the Normative State an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies. We shall try to find the meaning of these simultaneous states through an analysis of the decisions of the German administrative, civil and criminal courts, at the same time attempting to indicate the line of division between the two.”

Fraenkel makes his arguments in the way lawyers make arguments, namely by looking at case law and precedent. Thus, a large early section of the work examines how German courts reasoned their way into defining themselves as lacking jurisdiction over matters involving personal rights. As a lawyer, I found this interesting, but a layperson might not appreciate the approach that requires paying attention to fine details that separate one case from another.

We are all acquainted with the arbitrary and capriciousness of the Nazi state. What is less explicable is why contracts and property rights were respected, in general, under the Nazi regime. The answer seems to be that even the Nazis understood that without a stable and predictable legal system for contracts and property, the economic system on which the Nazis relied would be destroyed. The Nazis did not want to kill the goose that laid the golden egg.

The legal basis for the Prerogative State was the Emergency Decree of February 28, 1933. Third Reich legal decisions cited the Emergency Decree as the legal basis for excluding politics from the scope of judicial review. Fraenkel's position was that after February 28, 1933, Germany was effectively under martial law.

The Emergency Decree of February 28, 1933 was interpreted by the courts as having been enacted to protect Germany from Communist action. The courts expanded the application of the decree by essentially defining all Nazi enemies as “Communists,” including Catholic youth organizations in that anti-Nazi activity “indirectly” helped Communism:

“To justify its application to churches, sects, anti-vaccinationists and Boy Scouts, the Prussian Supreme Court (Kammergericht) created the theory of the indirect Communist danger. A decision of December 8, 1935, of the criminal division of the Prussian Supreme Court reversed a decision of the Municipal Court of Hagen (Westfalen) and acquitted the defendants who were members of a Catholic youth organization. The defendants had participated in hiking trips and athletic contests. The complaint stated that by so doing they had violated an ordinance issued by the District President (Regierungspräsident) which was based on the Decree of February 28, 1933. The decision declared that the goal of National-Socialism was the realization of the ideal ‘ethnic community' (Volksgemeinschaft) and the elimination of all conflicts and tensions. For that reason, manifestations of religious differences, aside from church activities in the narrowest sense, met with the disapproval of National-Socialism, or, in the words of the Kammergericht: ‘This type of accentuation of existing cleavages bears in itself the germ of the disintegration of the German people. Such disruption will only aid the spread of Communist aims.

The fact that the defendants were directly opposed to ‘Atheistic Communism' did not safeguard them from punishment for ‘indirect Communist activities,' because according to the court ‘the public expression of a private opinion will all too easily serve only to encourage persons who believe in or who sympathize with Communism or who are politically undecided. This encouragement will lead such persons to form and diffuse the opinion that the National-Socialist state is not supported by the entirety of the people.' 46 This theory of the indirect war on Communism permits the extirpation of any movement which in the slightest sense can be construed as supporting Communism.”

In this way, the Prerogative State was able to take under its jurisdiction anything that opposed the Nazi party.

Another example involves the Nazi state preventing Christian churches from protecting their interests:

“The Reichsminister of the Interior issued an order (based on the Reichstag Fire Decree) penalizing any minister announcing from the pulpit the names of those members of his congregation who had resigned from the Church. A minister who had been accused of violating this order argued that the decree was invalid. The purpose of the Decree of February 28, 1933 was the defense of the state against Communist violence. Is it conceivable that the prohibition of the public announcement of the names of persons who had withdrawn their church membership promoted rather than diminished Communist propaganda? And how does it represent ‘positive Christianity' — according to Art. 24 of the Nazi platform one of the aims of the National-Socialist Party — to prevent a minister's fulfilling his ecclesiastical obligation of counteracting the anti-religious movement? The declaration in favor of ‘positive Christianity' in the National-Socialist Party program was merely a political maneuver. The more radical members of the party had long broken with the church and turned to Neo-Paganism. But since formal resignations from church membership might engender unrest among those sections of the population which are still attached to the church, a method of combining the furtherance of church resignations while still maintaining the pretense of ‘positive Christianity' was found through the invocation of the Reichstag Fire Decree. This decree was thus used to prohibit the announcement of resignations from church-membership, and the Supreme Court of Munich found a close relationship between the prevention of Communist violence and the prohibition of the announcement of church resignations: accordingly it declared valid the order of the Minister of the Interior. It then rationalized its decision by claiming that the preamble is not a legal part of the decree. It holds that the decree ‘applies to all sorts of situations and hence any measure is admissible which is necessary for the restoration of public safety and order, no matter what the source of the threat.' 98 Nor did the court hesitate to invoke the Weimar Constitution in order to create a connection between a long-established practise of the church and a danger to public safety. The National-Socialist state, though it has boasted time and again that it has abolished the Weimar Constitution, and although it has suspended all the civil rights specified in the second part of this constitution, has none the less asserted, through one of the highest German courts, that ‘announcement of church resignations from the pulpit, although not a legal threat to the freedom of worship and conscience as guaranteed by the constitution, is in practise a restriction of that freedom ... It might also cause resentment and dissatisfaction with a state which permits such pressure on freedom of religion in direct contradiction with the constitution, and might thereby easily endanger public safety and order.' 99

Fraenkel, Ernst; Meierhenrich, Jens. The Dual State (Kindle Locations 2315-2337). OUP Oxford. Kindle Edition. The Reichsminister of the Interior issued an order (based on the Reichstag Fire Decree) penalizing any minister announcing from the pulpit the names of those members of his congregation who had resigned from the Church. A minister who had been accused of violating this order argued that the decree was invalid. The purpose of the Decree of February 28, 1933 was the defense of the state against Communist violence. Is it conceivable that the prohibition of the public announcement of the names of persons who had withdrawn their church membership promoted rather than diminished Communist propaganda? And how does it represent ‘positive Christianity' — according to Art. 24 of the Nazi platform one of the aims of the National-Socialist Party — to prevent a minister's fulfilling his ecclesiastical obligation of counteracting the anti-religious movement? The declaration in favor of ‘positive Christianity' in the National-Socialist Party program was merely a political maneuver. The more radical members of the party had long broken with the church and turned to Neo-Paganism. But since formal resignations from church membership might engender unrest among those sections of the population which are still attached to the church, a method of combining the furtherance of church resignations while still maintaining the pretense of ‘positive Christianity' was found through the invocation of the Reichstag Fire Decree. This decree was thus used to prohibit the announcement of resignations from church-membership, and the Supreme Court of Munich found a close relationship between the prevention of Communist violence and the prohibition of the announcement of church resignations: accordingly it declared valid the order of the Minister of the Interior. It then rationalized its decision by claiming that the preamble is not a legal part of the decree. It holds that the decree ‘applies to all sorts of situations and hence any measure is admissible which is necessary for the restoration of public safety and order, no matter what the source of the threat.' 98 Nor did the court hesitate to invoke the Weimar Constitution in order to create a connection between a long-established practise of the church and a danger to public safety. The National-Socialist state, though it has boasted time and again that it has abolished the Weimar Constitution, and although it has suspended all the civil rights specified in the second part of this constitution, has none the less asserted, through one of the highest German courts, that ‘announcement of church resignations from the pulpit, although not a legal threat to the freedom of worship and conscience as guaranteed by the constitution, is in practise a restriction of that freedom ... It might also cause resentment and dissatisfaction with a state which permits such pressure on freedom of religion in direct contradiction with the constitution, and might thereby easily endanger public safety and order.'”

In short, Fraenkel's book offers a granular analysis of Nazi activities.

I found Fraenkel's theory insightful in light of the current American news. For example, it has been perplexing to see Hillary Clinton exonerated of mishandling National Security information while average Americans are sent to prison for substantially less serious actions. Similarly, if any average American falsified social security information or identification, it would be a very serious matter, but the other day the local Congressman was condemning the Department of Homeland Security for sending letters to employers telling them the percentage of employees who had falsified social security information. If this situation involved average Americans, rather than illegal aliens, then we could imagine that there would be arrests and prison terms for the Americans.

And so it goes.

What we seem to have is a Dual State. There is a regime of normal laws that apply to the normal situation, but the political class gives itself the prerogative to arbitrarily ignore the law for political reasons. Hence, as established by the emails of participating FBI agents, the future president preferred by the political state cannot be treated like an average American - who would certainly have had his or her interview recorded - and illegal aliens can't be expected to abide by “racist” laws pertaining to the fraudulent use of federal documents. (Likewise, a presidential candidate who represents a threat to the Party will be spied on through warrants issued by a secret court based on fraudulent data manufactured by his opponents without protest by any adherent to the Party.) We have a situation where one political position is being censored in the public square and the adherents of that position are being attacked in public and discriminated against in employment, which itself is reminiscent of 1933 in Germany.

This is a sad situation - maybe it has always existed, maybe it is inevitable - but it seems that we live in a Dual State.