Ernst Fraenkel - The Dual State
APA: Fraenkel, E. (1941). The dual state: A contribution to the theory of dictatorship (E. A. Shils, Trans.; with E. Lowenstein & K. Knorr). Oxford University Press.
Link: https://archive.org/details/in.ernet.dli.2015.13142/mode/2up
page xiii:
'TOTALITARIAN' is a word of many meanings too often inadequately defined. In this treatise we have tried to isolate one important characteristic of the totalitarian state in Germany, and by studying this fundamental aspect of the National-Socialist regime we hope to make clearer the legal reality of the Third Reich. We have not attempted an exhaustive picture of the whole of the emerging legal system; rather we have sought to analyze the two states, the 'Prerogative State' and the 'Normative State,' as we shall call them, which co-exist in National-Socialist Germany. 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.
pages xiv-xv:
And we would remind those who think that the Normative State has already disappeared or that, if it exists, it is a mere remnant of the old state and therefore doomed to oblivion, that a nation of 8o million people can be controlled by a plan only if certain definite rules exist and are enforced according to which the relations between the state and its members, as well as the relations between the citizens themselves, are regulated.
page xvi:
A superficial view of the German dictatorship might be impressed either by its arbitrariness or by its efficiency based on order. It is the thesis of this book that the National-Socialist dictatorship is characterized by the combination of these two elements.
page 3:
The guiding basic principle of political administration is not justice; law is applied in the light of 'the circumstances of the individual case,' the purpose being achievement of a political aim. ... There is, however, no legal regulation of the official bodies. The political sphere in the Third Reich is governed neither by objective nor by subjective law, neither by legal guarantees nor jurisdictional qualifications. There are no legal rules governing the political sphere. It is regulated by arbitrary measures (Massnahmen), in which the dominant officials exercise their discretionary prerogatives. Hence the expression 'Prerogative State' (Massnahmenstaat).