The recent firing of Sally Yates for standing up to President Trump is scary. It, in many ways, can be read as setting an upsetting precedent that could be indicative of terrible things to come. Below, you will find a fairly long piece on the development and existence of the Dual State in Germany under the Third Reich. When I wrote in many months ago it was not with the intent to inform us about the Trump regime, but it has become useful for that given current events.
-Tyler
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As the Third Reich came to power, Ernst Fraenkel became interested in the ways German politics was changing and power was being concentrated. Unlike most other Jewish intellectuals, Fraenkel was able to stay in Berlin until 1938 because he was a veteran and had a non-Jewish wife. From 1933 until he left Germany, Fraenkel continued to work as a lawyer, defending Jews and political opponents of the Third Reich, and participating in the resistance movement as well.[1] He also secretly wrote a critical analysis of the Nazi regime, which was published in the United States as The Dual State.[2] His manuscript, which had to be smuggled out of Germany when he fled, was completed while he was at University of Chicago; it was translated by Edward Shils and published in 1941. This was one of the first major studies to put forward a theory of modern dictatorship.
Fraenkel began his study by looking to the earlier works on bureaucracy by Max Weber. Weber believed that bureaucratization of the modern world had led to its depersonalization. This, in turn, was quite well suited for a capitalist economy and its concomitant system of power. One of the key aspects of Weber’s conceptualization of modern bureaucracy is its hierarchical organization, where the relationships between subordinates and superiors are well established, such that the exercise of power should not be arbitrary and jurisdictions are clearly demarcated. Weber’s understanding of modern society clashes with the structural operation of National-Socialism in Germany.
The National-Socialist state exercised a remarkable number of arbitrary powers but combined them with a capitalistic economic order. For Fraenkel, this was paradoxical because the arbitrary execution of power meant that rational calculation was not possible. But without rational calculation capitalism is not possible. To resolve this Fraenkel worked to theorize how the Third Reich came to power and how its arbitrary power did not immediately destroy the economy. To do this, he theorized that Germany, under National-Socialism, was actually a dual state, the first of which was what he termed the “Prerogative State” and the second was the “Normative State.”
The constitution of the Third Reich was provided by martial law under the Emergency Decree of February 1933 (Decree of the president of the Reich for the protection of the people and the State of February 28, 1933). The decree is rather short with four brief paragraphs. Importantly, however, it states that
restrictions of personal freedom, the right of free expression of opinion, including the right of the press, the right of associations and meetings, interference with the secrets of letters, of the post, the telegraph and the telephone, and the issue of search warrants, as well as of orders for confiscation or restriction of property – all these restrictions are therefore also admissible beyond the otherwise legally fixed limitations.”[3]
When the 1933 decree was signed into German law, “the political sphere of German public life [was] removed from the jurisdiction of general law… The guiding basic principle of political administration [was] not justice; law [was] applied in the light of ‘the circumstances of the individual case,’ the purpose being achievement of a political aim.”[4]
The Prerogative State was charged with ensuring that the National-Socialist regime remained in power through what was essentially constitutional martial law, enabled by using an emergency as an excuse to make constitutional changes and exceptions. Under the Third Reich the impositions noted in the 1933 decree were applied arbitrarily. For example, the religious freedoms of Christians were generally not inhibited, while the freedoms of Jehovah’s Witnesses were, as the latter religion became outlawed. Thus, adherents of Christianity were permitted to practice but practicing Jehovah’s Witnesses were jailed. To justify the arbitrary application of legal impositions, the “Prussian Supreme Court (Kammergericht) created the theory of the indirect Communist danger.”[5] All opponents of National-Socialism, regardless of their political affiliation, were labeled Communist, thus allowing the legal enforcement of the Prerogative State to apply equally to all political opponents of the regime. The Gestapo, which defined itself as “a general staff, responsible for the defense measures as well as the equally necessary offensive measures against all the enemies of the State,”[6] was charged with this enforcement. The Gestapo had special legal exemptions that removed any legal guarantee for judicial review of their actions. Fraenkel suggests that the Gestapo is synonymous with the Prerogative State. The ordinary police, on the other hand, had no such exemption and their actions could still be judicially reviewed.
It is within the Normative State that the ordinary police are housed. The Normative State is charged with the usual enforcement of traffic violations, disorderly conduct (as long as it is not political), and the like. Although the day-to-day enforcement of most laws remained the jurisdiction of the ordinary police, the Third Reich could, at any time, protect itself from the jurisdiction of the Normative State (judicial review, etc.) by mandating that a particular case be handed over to the Prerogative State for regulation and enforcement, effectively preventing any real judicial review of the Third Reich. In this way, the Third Reich not only used the Prerogative State to
supplement and supersede the Normative State; it also use[d] it to disguise its political aims under the cloak of law… There is a double jurisdiction for all cases regarded as political. The police execute administrative punishments in addition to or instead of the criminal punishments executed by the courts… [citizens can be] deprived of any possibility of defense, subjected to heavier penalties and branded as an enemy of the state for the future without receiving ‘due process of law.’[7]
Thus the Prerogative State has no interest in formal justice, but only in material outcomes.
The Normative State has jurisdiction over most things that are not considered political by the Prerogative State. However, in the view of the Prerogative State, “political” does not “represent a single segment of… activities;” instead, potentially all activities in private and public life could be considered political if the Third Reich believed it was in the interests of National-Socialism to classify an activity in such a way. In other words, the jurisdiction of the Prerogative State is unlimited and the Normative State exists only because it is the necessary complement to the Prerogative State. “The coexistence of the Normative and Prerogative States is indicative of the National-Socialist policy of promoting the power of efficiency of the state by means of increased arbitrariness… The Prerogative State’s jurisdiction over all other jurisdictions guarantees that the efficiency of the state shall have priority over the liberty of the individual.”[8] However, it is in the Normative State that the legal institutions essential for private capitalism exist, including the regulation of property, contracts, labor, unfair competition, patents and trademarks, etc. The Normative State, by retaining this jurisdiction over the necessary legal areas required for capitalism, maintained the legitimacy of the Third Reich. In other words, for most citizens the Normative State, with its judicial review, adherence to law, and the like, was the state with which they interacted. Not until a citizen was deemed to be participating in behavior that was “political” would she or he have interaction with the Prerogative State. The intended outcome was to create a population that believed in the Third Reich and National-Socialism. And, as long as citizens believed and behaved, the Prerogative State remained mostly hidden.
The Austrian-American economist Joseph Schumpeter noted in The Sociology of Imperialisms,[9] “Nationalism and militarism are not created by capitalism, they become, however, capitalized and, finally they take their best strength out of capitalism. Capitalism is gradually drawing nationalism and militarism into its own circles, thereby maintaining and nourishing them. They again influence and modify capitalism.” The Prerogative State is seen as enforcing special laws on only the “truly bad” (i.e. Communists, terrorists, etc.) and the Normative State is seen as enabling capitalism to continue for all the “good” citizens, thereby preventing the questioning of the legitimacy of the Third Reich.
In Fraenkel’s analysis, there must always exist the myth of a dangerous enemy for the dual state to persist in this way. Further, temporary emergencies, such as the Reichstag fire, serve as stepping stones toward dictatorship under the justification of the self-defense of the state. This self-defense logic was used to justify many atrocities carried out by the Third Reich.[10] It was also the justification for writing the Law of February 10, 1936, which stated that “orders and affairs within the jurisdiction of the Gestapo are not subject to the review of the Administrative Courts.”[11] Eventually, there was no longer any aspect of life that could not potentially be considered political and put under the jurisdiction of the Prerogative State.
The Prerogative State and Normative State worked together to simultaneously punish opposition and rationalize the existence of National-Socialism. The essence of the Prerogative State includes: its refusal to accept legal restraint; its claim that material justice is more important than formal justice, which has no intrinsic value; that those who oppose National-Socialism are not just criminals but heretics; and that it will yield authority to the Normative State only in situations where this will further National-Socialism.[12] The Normative State, on the other hand, is used primarily as a tool to justify and rationalize National-Socialism and the Prerogative State. At any time a person could lose the protection of the Normative State, and even though the Normative State would occasionally critique the Prerogative State it was never anything more than an effort to maintain the legitimacy of the dictatorship. The table below lists some of the fundamental properties of each state as put forward by Fraenkel:
| Prerogative State | Normative State |
| · Works to ensure regime power.
· Operates outside of the Constitution. · No guarantee of judicial review. · Supplements and supersedes normative state. · Interest in material outcomes, not formal justice. · Enforces special laws on those participating in “political” behavior. |
· Jurisdiction over things not considered “political.”
· Necessary complement to Prerogative State. · Institutions essential for private capitalism. · Regulation of property, labor, competition, patents. · Maintains legitimacy of the state. |
Recently, the dual state theory has seen some renewed interest among scholars, especially when examining states that current have, or have had in the past, political environments considered to be repressive by Western standards, such as Sakwa’s use of the theory to explain Russia’s hybrid regime that combines democratic and authoritarian features.[13] Similarly, Jeffrey Kahn used the dual state theory to describe the selective use of law-as-weapon in Russia, where the law is used as a “selective device for oppression and control; it has no limit but the power of the one who wields it and no values external to the wielder that might constrain his actions.”[14] The dual state is discussed in Vittorio Coco’s work on the ideological divisions caused by the Cold War in Italy, where he examines the “double state” thesis put forward by Franco De Felice.[15] Jayasuriya examines how Singaporean leaders often suggest the rule of law is a defining feature of Singapore, when in reality the rule of law (Normative State) applies only to commerce, with the political arena under executive prerogative power.[16] Similarly, Meriéau suggests that Fraenkel’s dual state, Robert O. Paxton’s parallel state, and Peter Dale Scott’s deep state, are all terms used to explain the existence and function of a state within a state. Meriéau suggests that Thailand can be explained by these theories because of the resistance of deep state agents to the orders of elected officials.[17] Finally,[18] Brunkhorst uses the dual state theory to suggest that during the nineteenth and early twentieth centuries, there existed a global dual state where certain countries were analogs to the Prerogative State in that they had seemingly unlimited jurisdiction and their actions received no notable punishment.[19]
Interestingly, Agamben’s “State of Expection,”[20] while in many ways making an analysis similar to Fraenkel’s, fails to make any mention of the dual state theory even as he points out that the Third Reich was a twelve-year state of exception. Further, Agamben suggests that the state of exception in Germany established modern totalitarianism, which can be defined as a
legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system. Since then, the voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones.[21]
In light of September 11, the USA PATRIOT Act, Guantanamo Bay, and the War on Terror, it has been suggested that the United States has entered a permanent state of exception. Mark Neocleous suggests the idea of a permanent state of exception, or emergency, has “at its heart one basic proposition: that the emergency involves a suspension of the law.”[22] However, Neocleous does not agree with the assumption that this permanent state of emergency is a relatively recent development: “read historically through the lens of emergency power, the current conjuncture is not categorically different to much that has gone on before. As such, the idea that we have recently moved into a permanent state of emergency is historically naïve.”[23] Indeed, the previous chapter shows that continuous emergencies, most often war, have allowed for exceptions to established law.
Against the logic of liberalism, which suggests that law can allow for a return from the state of emergency, Neocleous criticizes the “legal fetishism” that suggests law is a universal solution to problems posed by power. This “involves a serious misjudgment in which it is simply assumed that legal procedures…are designed to protect human rights from state violence.”[24] This legal fetishism not only deradicalizes but it also overlooks emergency measures as part of the everyday exercise of power. It is for this reason that a return to normal law is nothing more than a return to political policing of activists, workers, and immigrants. In other words, it is not possible to return to a time when law was not used as power. Do we want to return to the time of the Sedition Act of 1798, Lincoln’s suspension of habeas corpus, the Pinkertons, the Alien Friends Act, or the Espionage Act? Neocleous writes, “The least effective response to state violence is to simply insist on rule of law… What is needed is a counter politics” against the normality of class power and oppression by law.[25] This counter politics is likely what Walter Benjamin hoped for in number VIII of his Theses on the Philosophy of History:
The tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule. We must attain to a conception of history that is in keeping with this insight. Then we shall clearly realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.”[26]
[1] Hubertus Buchstein, “Political Science and Democratic Culture: Ernst Fraenkel’s Studies of American Democracy”, German Politics and Society, 68 (21)(3) 2003, at 52.
[2] Ernst Fraenkel, The Dual State: A Contribution to The Theory of Dictatorship, (Oxford University Press: New York, 1941)
[3] Reichsgesetzblatt, Issued at Berlin, February 29, 1933, No. 17; Decree of the President of the Reich for the Protection of the People and the State. February 28, 1933, p. 83, Tiel I.
[4]Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, (The Lawbook Exchange, Ltd.: 2006), 3.
[5] Ibid., 17.
[6] Ibid., 21.
[7] Ibid., 41.
[8] Id at 71.
[9] Schumpeter quoted in Fraenkel at 183.
[10] Fraenkel, The Dual State, 39, “The co-existence of legal and arbitrary actions, most impressively demonstrated by the confinement in concentration camps of persons who have been acquitted by the courts, is a crucial development of the recent German Constitutional status.” The claim of actions to be necessary for peace or safety was often used as justification for unlawful acts. This is important when considering that the Prerogative State could overrule the Normative State by punishing someone that had been acquitted by the court. In other words, the Prerogative State could punish for actions that were not actually against any law.
[11] Ibid., 27.
[12] Ibid., 40-63.
[13] Richard Sakwa, “The Dual State in Russia,” Post-Soviet Affairs 26 no. 3, 2010.
[14] Jeffrey Kahn, “The law Is a Causeway: Metaphor and the Rule of Law in Russia” in The Legal Doctrines of the rule of Law and the Legal State (Springer International Publishing: Switzerland, 2014).
[15] Vittorio Coco, “Conspiracy theories in Republican Italy: The Pellegrino Report to the Parliamentary Commission on Terrorism,” Journal of Modern Italian Studies 20 no. 3, 2015.
[16] Kanishka Jayasuriya, “The Exception Becomes the Norm: Law and Regimes of Exception in East Asia,” 2 APLPJ I 2001.
[17] Eugénie Mérieau, “Thailand’s Deep State, royal power and the Constitutional Court (1997-2015),” Journal of Contemporary Asia, 2016.
[18] This is not an exhaustive list of all scholarship that uses the dual state theory, but should give an idea of how it is used to examine various states around the world.
[19] Hauke Brunkhorst, “Democracy Under Pressure: The Return of the Dialectic of Enlightenment in the World Society,” Civitas, Porto Alegre, 10 no.1, 2010.
[20] Giorgio Agamben, The State of Exception, (University of Chicago Press: 2005).
[21] Ibid., 2.
[22] Mark Neocleous, “The Problem with Normality: Taking Exception to ‘Permanent Emergency’,” Alternatives 31, (2006), 193.
[23] Ibid., 194.
[24] Ibid., 207.
[25] Ibid., 209.
[26] Walter Benjamin, “Theses on the Philosophy of History,” in Illuminations: Essays and Reflections (Shocken Books: New York, 1969), 257 (emphasis added).
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