The dual state

from Wikipedia, the free encyclopedia
Title page of Der Doppelstaat , 1974 edition

The dual state is a study by the German-American lawyer and political scientist Ernst Fraenkel (1898–1975) on the Nazi state . It first appeared in the United States around the turn of 1940/41 under the title The Dual State . In December 1974 the European Publishing House submitted the German translation. In his work, the author distinguished the normative state , whose actions are based on laws , from the state of measures , which are based on considerations of political expediency . Fraenkel's study is part of the standard literature on National Socialist Germany.

background

Ernst Fraenkel represented in the final phase of the Weimar Republic as a lawyer several times the board of the Social Democratic Party and operational until the Nazi occupation of union offices (2 May 1933) together with Franz Neumann in Berlin a law practice in the building of the German Metalworkers' Union , for the he was a lawyer . As a former front soldier during the First World War , Fraenkel was initially spared from the anti-Semitic professional bans (→  Law for the Restoration of the Civil Service ) (→  Frontline Fighter Privilege ). Until 1938 he took on mandates for opponents of the regime. He also wrote articles for the magazine of the International Socialist Combat League , a resistance organization against National Socialism .

From 1936 to 1938 he secretly worked on a political-scientific analysis of the Nazi state, which he later referred to as the “original dual state”. He used newspaper reports, magazine articles, laws, ordinances, court decisions and his own experience as material for this study. This study is the only comprehensive critical analysis of the Nazi regime that was carried out within Germany between 1933 and 1945. “No opponent of National Socialism in Germany had dealt so intensively with its state constitution and documented this in writing. Nobody had dared to illuminate the structures of this state from the inside. ”With his presentation, Fraenkel wanted to warn against the idea that the conventional legal system would at least partially be preserved in the“ Third Reich ”. In 1937 he published the article “The Third Reich as a Dual State” under a pseudonym in the Sozialistische Warte , which already uses the terms normative state and state of measures .

In September 1938 Fraenkel emigrated to the USA via Great Britain . There he revised his manuscript, which, with the help of Fritz Eberhard , had been smuggled out of Germany in French diplomatic bags shortly before Fraenkel's emigration. Fraenkel defused genuinely political passages in favor of a more scientific representation. He also added a few paragraphs to help the Anglo-American reader understand his theses. On the whole, a script that was also supposed to take on political functions and was shaped by German legal and political theory , became a script with more political and sociological terminology. The translation of the now heavily modified manuscript into English was done by Edward Shils .

content

Fraenkel divided his study into three parts: Part one is dedicated to the legal system of the dual state. In the second part the author analyzes its legal doctrine and in the third part the legal reality of the dual state takes center stage.

According to Fraenkel, the system of rule under National Socialism consists of two areas: The normative state is characterized by the existence of traditional and new legal provisions , which are fundamentally based on predictability and in this function are useful for maintaining the private capitalist economic order. In this sphere, laws, court decisions and administrative acts would still be valid; the private property is protected - but not the Jews , who were outside of any legal norm - and contract law still essential.

In contrast to this, the state taking action is not based on rights , but solely on considerations of situational and political expediency. Decisions would be made "as the case may be". In this sector “the standards are lacking and the measures prevail”.

Fraenkel emphasized that , in case of doubt, the state of action could prevail against the normative state - the persecution of Jews in the Nazi state was a central example of this. What counts as political and therefore belongs to the state in which the action is taken is not decided by the courts , but by political authorities. Fraenkel also emphasized that the concept of the dual state did not mean the alleged coexistence of party and state. Instead, it is important for him to take a look at the entire network of public institutions that could operate both in the normative state and in the state of action .

In his study, Fraenkel understood the Reichstag Fire Ordinance of February 28, 1933 as a “constitutional document of the Third Reich”. With this emphasis on exceptional legislation, he resembled his adversary Carl Schmitt , the “crown lawyer of the Third Reich” ( Waldemar Gurian ), who had stylized the decision on the state of emergency as a central feature of political sovereignty . However, while he spoke of a dichotomous friend-foe distinction in politics and only recognized absolute states of either-or, Fraenkel underlined the dynamism of exceptional legislation in the Nazi state and recognized a multitude of transformation processes of the political order .

reception

The Dual State received intense attention from the American public shortly after its publication. In Germany, however, the book was difficult to get even after 1945. Karl Dietrich Bracher described it as “fundamental” in a footnote in his work The German Dictatorship (1969), but did not deal further with Fraenkel's study. Even Martin Broszat mentioned it in his study The State of Hitler (1969) in only one place.

For personal reasons, Fraenkel actually no longer wanted to deal with the Nazi state after 1945. Finally he was persuaded to contribute to a German-language edition of the Dual State . The German version, which appeared in 1974, was widely used and recognized; The three central terms double state , normative state and state of measures were received comprehensively and were often used in the analysis of the National Socialist German Reich. Fraenkel's study proved to be an important impetus for a differentiated analysis of the rule of the Nazi state , which began in the late 1960s, questioning the image of a monolithic leader state and assuming an anarchic polycracy . The Federal Social Court also took up Fraenkel’s considerations when, on September 11, 1991, in a fundamental decision, it assigned the death sentence practice of Wehrmacht courts to the state in which the action was taken .

Fraenkel himself said that the dual state of the prewar period was transformed into the unstate , as described in Franz Neumann's Behemoth , by the dynamism of the state of action after the start of the war . Michael Wildt contradicted this thesis and emphasized that the state of action had smashed the traditional normative state , but did not create a non-state , but a new racist legal order. The normative state should guarantee the security of norms for the “positive, constructive forces of the people” ( Werner Best ), the “ national comrades ” and at the same time lay down racially defined inequality as a principle of order.

The social historian Hans-Ulrich Wehler links Fraenkel's dichotomy of terms with the ideal types of legitimate rule that Max Weber sketched out shortly before his death in 1920. According to this, Hitler's rule was essentially based on the charismatic characteristics ascribed to him , which justified revolutionary measures and personnel decisions outside the existing order. The institutionalization of such rule always threatens to consolidate it in bureaucratic forms, from which a double hierarchy of conventionally bureaucratic and charismatically legitimized elites is formed: In the time of National Socialism this was precisely the dual state.

In the meantime, the terms state of action and state of norms have also been used to analyze Stalinism . Against this background, the historian Jürgen Zarusky , who works at the Institute for Contemporary History , analyzed the legal-historical development of ordinary jurisdiction and extrajudicial measures in the Soviet Union . His Bochum colleague Stefan Plaggenborg investigated the way in which the Stalinist state of measures had transformed into a post-Stalinist state of norms. With reference to the GDR , Gesine Schwan has argued that the term “ unjust state ” is inappropriate, but it is adequate to speak of a dual state in which the SED could suspend the legality of proceedings at any time.

expenditure

  • The dual state. A Contribution to the Theory of Dictatorship . Transl. from the German by EA Shils, in collaboration with Edith Lowenstein and Klaus Knorr, Oxford University Press , New York [u. a.] 1941.
  • The dual state. A Contribution to the Theory of Dictatorship . Transl. from the German by EA Shils, in collaboration with Edith Lowenstein and Klaus Knorr, Octagon Books, New York 1969.
  • The dual state. Law and Justice in the “Third Reich” . Backward from the English by Manuela Schöps in collaboration with the author, Europäische Verlagsanstalt , Frankfurt am Main 1974, ISBN 3-434-20062-2 .
  • Il doppio state. Contributo alla teoria della dittatura , Prefazione di Norberto Bobbio , Einaudi , Torino 1983. ISBN 88-06-05624-7 .
  • The dual state. Law and Justice in the “Third Reich” . From d. American back-translated by Manuela Schöps in collaboration with the author, Fischer Taschenbuch Verlag, Frankfurt am Main 1984, ISBN 3-596-24305-X .
  • The original dual state [1938] , in: Ernst Fraenkel: Gesammelte Schriften. Volume 2: National Socialism and Resistance. Edited by Alexander von Brünneck . Nomos Verlagsgesellschaft , Baden-Baden 1999, pp. 267–473, ISBN 3-7890-5826-2 .
  • The double state , 2nd, revised edition, ed. and a. by Alexander von Brünneck, European Publishing House, Hamburg 2001, ISBN 3-434-50504-0 .

literature

Web links

Individual evidence

  1. ^ After Ladwig-Winters the book appeared shortly before Christmas 1940, after von Brünneck at the turn of 1940/41 (Simone Ladwig-Winters: Ernst Fraenkel. Ein political life , p. 162; Alexander von Brünneck: Foreword of the editor (2001) , p . 14). The Library of Congress gives the publication date 1941 .
  2. ↑ For the assessment as "standard literature" see for example Alexander von Brünneck: Foreword to this volume , p. 8 or the treatment of the double state in Jürgen Danyel, Jan-Holger Kirsch, Martin Sabrow (ed.): 50 classics of contemporary history , Vandenhoeck & Ruprecht , Göttingen 2007, ISBN 3-525-36024-X .
  3. ↑ Alexander von Brünneck: Ernst Fraenkel's original dual state from 1938 and the dual state from 1941/1974 , 2000, p. 42.
  4. ^ Simone Ladwig-Winters: Ernst Fraenkel. A Political Life , p. 125.
  5. ↑ On this Alexander von Brünneck: Foreword by the editor (2001) , p. 12.
  6. ↑ Gieselher Schmidt: double and Urdoppelstaat. In: Frankfurter Allgemeine Zeitung , July 26, 2000, No. 171, p. 12, accessed on December 25, 2011. For the biographical background, see Alexander von Brünneck: Foreword of the editor (2001) , p. 9 f.
  7. ↑ The article has been republished in Ernst Fraenkel: Gesammelte Schriften. Volume 2: National Socialism and Resistance. Edited by Alexander von Brünneck. Nomos Verlagsgesellschaft, Baden-Baden 1999, pp. 504-519, ISBN 3-7890-5826-2 .
  8. ↑ See Alexander von Brünneck: Foreword by the editor (2001) , p. 14.
  9. ↑ Alexander von Brünneck: Ernst Fraenkel's original dual state from 1938 and the dual state from 1941/1974 , 2000, p. 37.
  10. ^ Simone Ladwig-Winters: Ernst Fraenkel. A Political Life , p. 148.
  11. ↑ On this, Ernst Fraenkel: Der Doppelstaat , 2nd, reviewed edition, 2001, pp. 141–149.
  12. ↑ Formulation by Ernst Fraenkel: Der Doppelstaat , 2nd, reviewed edition, 2001, p. 113, there in quotation marks.
  13. ↑ Fraenkel, quoted from Michael Wildt: The transformation of the state of emergency ... Version: 1.0, in: Docupedia-Zeitgeschichte , June 1, 2011, p. 3. Original formulation : Ernst Fraenkel: Der Doppelstaat , 2nd, reviewed edition, 2001, p. 55.
  14. ↑ On this core thesis see Alexander von Brünneck: Vorwort des Editor (2001) , p. 11.
  15. ↑ On this Joachim Detjen: Fraenkel, Ernst (December 28, 1898 Cologne; † March 28, 1975 Berlin) Der Doppelstaat (2001).
  16. ↑ On this Michael Wildt: The transformation of the state of emergency… Version: 1.0, in: Docupedia-Zeitgeschichte , June 1, 2011, p. 3.
  17. ↑ To this Michael Wildt: The transformation of the state of emergency… Version: 1.0, in: Docupedia-Zeitgeschichte , June 1, 2011, p. 2 f.
  18. ↑ Cf. the statements and references in Alexander von Brünneck: Foreword by the editor (2001) , p. 14 f.
  19. ↑ On this Alexander von Brünneck: Foreword by the editor (2001) , p. 16.
  20. ↑ On reception after 1974, see Alexander von Brünneck: Vorwort des Editor (2001) , p. 17.
  21. ↑ On the significance of the dual state for the functionalist or structuralist interpretation of the Third Reich see Klaus Hildebrand : Das Third Reich (= Oldenbourg floor plan of history , vol. 17), 6., neubearb. Edition, Oldenbourg, Munich 2003, p. 164 f, ISBN 3-486-49096-6 .
  22. ↑ To this Michael Wildt: The political order of the national community. Ernst Fraenkel's “Doppelstaat” re-examined , 2003, pp. 58–61.
  23. ^ Reference point W. Best: New establishment of the police law. In: Yearbook of the Academy for German Law , 1937, pp. 132–152, especially p. 133. Fraenkel refers to Best in: Ders .: Der Doppelstaat , 2nd, reviewed edition, 2001, p. 118. To the connection Fraenkel-Best see also Ulrich Herbert : Best. Biographical studies on radicalism, world view and reason 1903-1989. Dietz, Bonn 1996, p. 179 f, ISBN 3-8012-5019-9
  24. ^ Hans-Ulrich Wehler: German history of society . Vol. 4: From the beginning of the First World War to the founding of the two German states 1914–1949 . CH Beck Verlag, Munich 2003, p. 557 f.
  25. ^ Jürgen Zarusky: The Stalinist and the National Socialist Justice. A sketch of the problem from a comparative dictatorship perspective. (PDF; 257 kB) In: ku-eichstaett.de. Retrieved December 26, 2011 .
  26. ^ Stefan Plaggenborg: Experiment Modern. The Soviet Way , Campus Verlag, Frankfurt am Main [u. a.] 2006, ISBN 3-593-38028-5 . See also the review by Stefan Breuer in: Frankfurter Allgemeine Zeitung , September 1, 2006, p. 41, accessed on December 26, 2011.
  27. ↑ References to the use of Fraenkel's terms in Stalinism research by Michael Wildt: The transformation of the state of emergency… Version: 1.0, in: Docupedia-Zeitgeschichte , June 1, 2011, p. 4.
  28. ↑ Gesine Schwan: In the trap of totalitarianism. In: The time . June 25, 2009. Retrieved January 6, 2012 .
This article was added to the list of articles worth reading on January 7, 2012 in this version .