https://archive.md/9Cll3
"On September 20, 1938, a man who had witnessed the rise of fascism packed his
suitcases and fled his home in Berlin. He arranged to have smuggled separately
a manuscript that he had drafted in secret over the previous two years. This
book was a remarkable one. It clarified what was unfolding in Berlin at the
time, the catalyst for its author’s flight.
The man fleeing that day was a Jewish labor lawyer named Ernst Fraenkel. He
completed his manuscript two years later at the University of Chicago (where I
teach), publishing it as
The Dual State, with the modest subtitle A
Contribution to the Theory of Dictatorship. The book explains how the Nazi
regime managed to keep on track a capitalist economy governed by stable
laws—and maintain a day-to-day normalcy for many of its citizens—while at the
same time establishing a domain of lawlessness and state violence in order to
realize its terrible vision of ethno-nationalism.
Fraenkel offered a simple, yet powerful, picture of how the constitutional and
legal foundations of the Weimar Republic eroded, and were replaced by
strongman-style rule in which the commands of the Nazi Party and its leader
became paramount. His perspective was not grounded in abstract political
theory; it grew instead from his experience as a Jewish lawyer in Nazi Berlin
representing dissidents and other disfavored clients. Academic in tone,
The
Dual State sketches a template of emerging tyranny distilled from bloody and
horrifying experience.
As Fraenkel explained it, a lawless dictatorship does not arise simply by
snuffing out the ordinary legal system of rules, procedures, and precedents. To
the contrary, that system—which he called the “normative state”—remains in
place while dictatorial power spreads across society. What happens, Fraenkel
explained, is insidious. Rather than completely eliminating the normative
state, the Nazi regime slowly created a parallel zone in which “unlimited
arbitrariness and violence unchecked by any legal guarantees” reigned freely.
In this domain, which Fraenkel called the “prerogative state,” ordinary law
didn’t apply. (A prerogative power is one that allows a person such as a
monarch to act without regard to the laws on the books; theorists from John
Locke onward have offered various formulations of the idea.) In this
prerogative state, judges and other legal actors deferred to the racist
hierarchies and ruthless expediencies of the Nazi regime.
The key here is that this prerogative state does not immediately and completely
overrun the normative state. Rather, Fraenkel argued, dictatorships create a
lawless zone that runs alongside the normative state. The two states cohabit
uneasily and unstably. On any given day, people or cases could be jerked out of
the normative state and into the prerogative one. In July 1936, for example,
Fraenkel won a case for employees of an association taken over by the Nazis. A
few days later, he learned that the Gestapo had seized the money owed to his
clients and deposited it in the government’s coffers. Over time, the
prerogative state would distort and slowly unravel the legal procedures of the
normative state, leaving a smaller and smaller domain for ordinary law."
Via Susan ****
Cheers,
*** Xanni ***
--
mailto:xanni@xanadu.net Andrew Pam
http://xanadu.com.au/ Chief Scientist, Xanadu
https://glasswings.com.au/ Partner, Glass Wings
https://sericyb.com.au/ Manager, Serious Cybernetics
