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This chapter focuses on the theories of Ernst Fraenkel, one of the most important Socialist intellectuals in postwar Germany. In the 1950s, the German left transformed from a class-based party of international neutrality into a broad-tent party of Cold War conviction. This shift by the Social Democratic Party of Germany (SPD) has its roots in intellectual projects in the Weimar period. No one represents this continuity better than Fraenkel, a member of a unique intellectual school that sought to fuse Socialist and bourgeois theories of law, politics, and democracy. In this line of thought, it was incumbent on Socialists and middle-class liberals to join together in building a new kind of democratic regime, premised on equal respect for individual rights and social welfare. According to Fraenkel, the SPD had to renounce its belief that only the nationalization of the economy would bring about “true” democratic equality. Instead, Socialists had to embrace democratic visions that centered on individual rights, reach out to the middle class, and focus on welfare programs. In Fraenkel's mind, the true threat to this progressive vision was not the middle classes and industrialists, as many Socialists claimed, but ultimately communism.

This chapter explores the uneven reception of Fraenkel’s classic across space and time, with particular reference to the book’s very different fortunes in the United States and postwar Germany. I account in detail for the international recognition bestowed on Fraenkel in the early 1940s, and its subsequent status as an obligatory footnote—a marginalized classic that few had read and even fewer understood. I also explain why The Dual State failed to make inroads in Germany until the early 1970s, when the first German edition was published. I weave into the analysis elements of an intellectual biography, charting Fraenkel’s career, inter alia, in the U.S. Foreign Economic Administration, which operated under the auspices of the Office of Strategic Services (OSS); as a U.S. legal adviser in the international territorial administration of Korea; and as reluctant doyen of political science in postwar Germany.

This chapter turns to the gestation of the first, German-language manuscript of The Dual State, known as the Urdoppelstaat of 1938. I then chart the transformation of this unpublished manuscript into the 1941 book. To lay the foundation for this detailed reconstruction, I trace in some depth the gradual destruction of the German Rechtsstaat, presenting in an accessible manner several decades worth of material culled from the historiography of Nazi law. This illustrates the enormity—and danger—of the task that Fraenkel set himself: to serve as a participant observer in the courts of the “Third Reich.” Drawing on a series of primary documents, I piece together the incredible and untold story of the gestation of The Dual State, a tale of rare courage, acumen, and insight. I pay detailed attention to similarities and differences in recently discovered manuscript drafts.

This chapter turns from the making of The Dual State to its theoretical significance. Fraenkel’s principal argument had three parts. The first part comprised several counterintuitive propositions about the nature of the institutional design of the Nazi political order. Fraenkel argued that this structure consisted of two interacting states: a prerogative and a normative state. The second part of his argument revolved around the institutional effects of this bifurcated state. Fraenkel claimed that it facilitated not only violent domination but also allowed for an orderly transition to and consolidation of authoritarian rule. The third part of Fraenkel’s argument concerned the institutional origins of the dual state. I elaborate and critically evaluate each of these arguments in turn. Through an in-depth engagement with the strengths—and weaknesses—of The Dual State, I prepare the ground for the remainder of the analysis.

This chapter sets the stage for what is to come by introducing readers to the theory and practice of Nazi law. The first section uses the book’s cover image (a portrait of the infamous Nazi lawyer Roland Freisler) to introduce the argument the Nazi state was inherently bifurcated, and not just in its early years. The second and third sections juxtapose two contending approaches to the study of Nazi law: legal philosophy and legal anthropology. I show why the former is wanting in a critical analysis of what has become known as “Radbruch’s formula.” I highlight the limitations of Gustav Radbruch’s argument about statutory lawlessness by way of a comparison with Ernst Fraenkel’s ethnographic method. I close with a discussion of the problem of outcome knowledge in historical analysis, with particular reference to the historiography of Weimar and Nazi Germany.

Chapter 4 explores how various conceptions of the Nazi totalitarian state influenced the findings and prosecutions of the Industrialist Trials at Nuremberg conducted against key officials in the Flick, Krupp, and I.G. Farben companies. The chapter considers the influence of the Frankfurt School and Franz Neumann’s theory of the Nazi state as Behemoth on the prosecution’s innovative theory of the Nazi regime. The tribunals’ legal reasoning rejected Neumann’s theory of Behemoth and insisted instead on a link being established with state authority, influence, or control as a basis for the responsibility of corporate officials. The chapter analyses the shortcomings of the tribunals’ approach in meeting the normative challenge of the Industrialist Trials, namely to develop principles for establishing responsibilities among businesspersons operating as such. Furthermore, it reveals how the tribunals’ conceptions of the corporate veil of the state, the company, and the relation between them served as a shield against individual responsibility.

A review of Supreme Court cases regarding racial violence suggests that, although the Court did rule in favor of acquitting lynchers of federal prosecution, it did not strip all authority completely for federal rights enforcement. A theory of interbranch dynamics is proposed that accounts for how lynchings existed as a tacitly accepted practice without being sanctioned explicitly by the law. Drawing from Ernst Fraenkel’s model of the dual state and Gerald Neuman’s concept of anomalous zones, constitutional anarchy brings together how Southern extremists were able to carve out a degree of jurisprudential authority for themselves, how the political branches of the federal government actively chose not to intervene in fighting Southern extremists, and how the federal judiciary reconciled the dilemma of what seemed to be a challenge to national sovereignty.

This chapter introduces the figure of Hugo Sinzheimer, his conception of labour law (as a corrective to private law), and his idea of the economic constitution. It examines both the idea of the economic constitution as first developed by Sinzheimer in the immediate aftermath of the November Revolution, and the concept of the labour constitution, used by him in the 1920s to describe and analyse the collective labour law of the Weimar Republic. The final part of the chapter focuses on the question of the role of the state in the economic, or labour, constitution, comparing Sinzheimer’s work with arguments made by Kahn-Freund and Ernst Fraenkel.