An Ethnography of Nazi Law: The Intellectual Foundations of Ernst Fraenkel’s Theory of Dictatorship

The Dual State is one of the most erudite books on dictatorship ever written’

Opening paragraphs of Jens Meierhenrich’s 2017 introduction to The Dual State (1941)

Though largely forgotten today, Ernst Fraenkel’s The Dual State: A Contribution to the Theory of Democracy, first published in 1941, is one of the seminal works in the study of law and society. On September 20, 1938, Fraenkel, a German labor lawyer and social democrat of Jewish faith, fled the Nazi dictatorship. From the safety of his exile in the United States, he published, with Oxford University Press, an English-language edition of his pioneering account about the complicated relationship between authoritarianism and the rule of law in the early years of Hitler’s Germany. Fraenkel had secretly drafted the original manuscript in Germany between 1936 and 1938. Because of these clandestine origins, one commentator recently described The Dual State as “the ultimate piece of intellectual resistance” to the Nazi regime.

An ethnography of law crafted in the most forbidding of circumstances, The Dual State is one of the most erudite books on dictatorship ever written. It contained the first comprehensive, institutional analysis of the rise and nature of National Socialism, and it was the only such analysis written from within Germany. Although well received and widely reviewed upon publication in the United States in the early 1940s, the concept of the dual state, with its two halves—the prerogative state and the normative state—has received only scant attention ever since. This is unfortunate, for as I have shown elsewhere, the idea of the dual state is of immediate relevance not only for the theory of dictatorship in the twenty-first century but for the theory of democracy as well.

This republication of Fraenkel’s largely forgotten (and long out-of-print) monograph aims to restore it to its rightful place as a classic of law-and-society scholarship. It also endeavors to make it more widely available to scholars and students in related disciplines. Given the burgeoning literature on democracy and the rule of law—in all of its guises—as well as the ongoing policy concern with the promotion of both in changing societies the world over, a re-launch for our times of one of the most prescient accounts of legal contention is not only opportune, it is overdue….

The Lady Vanishes