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Ernst Fraenkel's Theory of Dictatorship
Aug. 13th, 2025 09:46 am![[syndicated profile]](https://www.dreamwidth.org/img/silk/identity/feed.png){kind=small}
metafilter_feedPossibility of a US Dual State? [33m] - "Aziz Huq is a Professor of US and comparative constitutional law at the University of Chicago School of Law. He wrote an article for The Atlantic entitled 'America is watching the rise of a Dual State.'"
For most people, the courts will continue to operate as usual—until they don't.
I don't think that The Dual State[1] was a book that people knew about until this year. It was a book that was out of print until 2007 when a really marvelous scholar at the London School of Economics, a German man called Jens Meierhenrich, persuaded Oxford University Press to republish it with a long and terrific introduction that he wrote.[2] I think that there are people who picked up and read The Dual State in part as a way of thinking through an earlier generation's set of problems with the rule of law. In particular, the kind of policies that emerged in the wake of 9/11. So, I was a lawyer for detainees after 9/11 in legal actions that were brought against the government. I knew of the book, The Dual State, and knew a little bit about it while I was in practice because it bore upon the kind of tactics that one saw back in the 2000s and 2010s. But I don't think I seriously thought about the book until the beginning of this year when many of the tactics that I think one fairly saw being used by the Trump administration reminded me of things that Fraenkel alluded to in The Dual State. So I think that my piece and a piece by a Princeton political scientist called Kim Lane Scheppele[3,4,5] at the beginning of March were the first public writings that circled back to Fraenkel's Dual State. I don't think that anything that has happened since March however undercuts the sense that this is a resonant text. And I would just add one more reason why the text has resonance today, which is it's not clear to me how many have actually read the book as opposed to learned about Fraenkel's life.[6,7] I think the example of a man who chooses – just focusing for a moment on 1933 -- chooses at the moment where political competition in Germany is being shut down. Not only communists who are immediately arrested, but most members of the left-of-center Socialist Party with which Fraenkel was associated and also Christian Democrats were being shunted off either into house arrest or into prison. At that moment in time, Fraenkel, notwithstanding the fact that he's pretty well off in the beginning of the '30s and certainly he could have left -- indeed, his law partner, a man called Franz Neumann,[8] leaves and takes up residence at the London School of Economics. He chooses to stay, and he indeed has to litigate his right to stay as a veteran notwithstanding the fact that he's Jewish. And as a Jew and as a socialist he remains in Berlin, he remains in the belly of the beast. I don't mean to be too dramatic, but that doesn't strike me as being inaccurate. He remains in the belly of the beast right until the very last moment that he can, striving as far as we can tell, to save people. To, as you said, pull people back from the maw of the Prerogative State, to at least put them in a position where they had some legal structure, some sense of rights and expectations that might be respected. There's something enormously admirable about a person who makes those choices and who quietly and with enormous dignity goes about defending humane values. So I think that yes, absolutely, The Dual State provides an enormously valuable and interesting lens for thinking about what's happening to the law at the moment. But I also think that Fraenkel's own personal example is really powerful. And it's certainly powerful for me as a lawyer, but I think it's powerful for people more generally.Cruelty and Loyalty - "Governing through cruelty and loyalty reverses the basic premise of the rule of law, which is that people should be able to live without fear or favor. In a democratic and constitutional government, people are supposed to be treated with equal respect and with guaranteed rights under a government that is not permitted to entrench itself in power. But when generating fear through cruelty and demanding favor through loyalty become the central organizing principles of government, then rights fray, checks on government fail, the entrenchment of a particular leader begins, and autocracy is on the march."
Ernst Fraenkel, a Jewish lawyer writing from inside Nazi Germany in the late 1930s, described what he saw as a legal practitioner. For most Germans, life went on as usual. Laws were enforced as written; the courts operated predictably. He called this the Normative State. But there was another parallel state operating at the same time into which people could be cast when the government had decided to target them. This was the Prerogative State, in which arbitrariness reigned and all safeguards of law disappeared. This Dual State relied on the surface appearance of normality from the Normative State to whitewash the use of emergency powers, enabling acts, special decrees and discriminatory laws that created a Prerogative State where cruelty was the order of the day. Hitler's government counted on the appearance of the Normative State to avert people's eyes from the Prerogative State. Fraenkel's description of the Dual State should warn us that we cannot be complacent because the United States just had a free and fair election followed by a peaceful transfer of power or because the Democratic Party now acts like they can will normality into existence by enacting their half of normal politics. Even the most terrible dictatorships that history has produced found ways to make life seem normal for most people, as long as they demobilized politically and didn't challenge the dictator's hold on power. To understand what kind of government we have, we need to look at how that government treats those whom the leader believes are his enemies as well as those who are on the margins of society.Robert H. Jackson Lecture | Kim Lane Scheppele - "I teach a course on the rule of law and the opening reading that I make all of my students read every year is Robert Jackson's opening statement as the Nuremberg prosecutor. If you're going to read something while you're here, Chautauqua is famous for sitting under the trees and reading, read Jackson's opening statement.[9,10] Not only is it beautiful prose, but it lays out the evidence against the high-level Nazi leaders and it lays out the case for the rule of law. And I really urge you to read it. It's the thing I think that has inspired a lot of the work that I've done. And so what I'm going to do is to pivot around Robert Jackson's experience at Nuremberg because today when the fate of American democracy is in the balance, I think Jackson's experience at Nuremberg has something to teach us. And so let me just foreshadow what I'm going to do. I want to convince you today of two things. One was that the Nuremberg trial and Jackson's participation in it had a major effect on him and through him had a major effect on US constitutional law particularly on the doctrine of separation of powers."[11] How to Lose a Democracy: What America Can Learn from the Rest of the World - "Professor Scheppele is one of the foremost experts on how legal and constitutional instruments can be used to destroy democracy. In her talk, Professor Scheppele highlights the strategies autocrats use, and the ten steps countries can take towards an autocracy. She gives examples from Hungary, Poland, Russia, and elsewhere, but she also highlights our present situation in the US."
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