Book Review – The Dual State
Image: The Dual State by Len Lantz (CC BY-NC-ND)
Synopsis: Len's Star Rating: 7 out of 10. An essential yet challenging read for anyone seeking to gain a deeper understanding of the history of the dual state in Nazi Germany and the threat a dual state poses to any constitutional democracy.
BY LEN LANTZ, MD / 7.27.2025; No. 133
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Star Rating – 7 out of 10
Rating guide: 1 = horrible, 5 = average and 10 = wow
Author
Ernst Fraenkel
About the author
Ernst Fraenkel (1898–1975) was born in a Jewish family in Germany and trained as a lawyer. He was allowed an unusual privilege of practicing labor law (in a limited capacity) in Nazi Germany because of his service in the German Army during World War I. In 1938, he escaped Nazi Germany and moved to the United Kingdom, and in 1939, he relocated to the United States. Fraenkel studied American law at the University of Chicago Law School and graduated in 1941, the same year The Dual State was published. He later served as an advisor to the US government on its policies related to Korea, and then he returned to Germany in 1951. He became a lecturer at the Deutsche Hochschule für Politik in Berlin and later a professor at the Freie Universität Berlin. Ernst Fraenkel is credited with developing a distinct antiauthoritarian theory of neo-pluralism in Germany. He founded the John F. Kennedy Institute in Berlin in 1963.
General description
The Dual State: A Contribution to the Theory of Dictatorship is considered by many to be a classic text on Nazi Germany and the structures and processes that contribute to the creation of totalitarianism. Author Ernst Fraenkel thoroughly explores and explains not just legal strategies but also a variety of techniques that German Nazi leaders used to expand their power and control the behavior of German citizens, bypassing the existing constitution and laws without abolishing them. Ernst Fraenkel proposed the idea that Nazi Germany experienced a Dual State, in which the Normative State (the existing constitution, laws, and courts) and the Prerogative State (the vicious parallel government controlled by the Nazi party) coexisted primarily to maintain the German economy and control the population. Throughout the text, the author cites legal cases, speeches, and arbitrary laws that supported the Prerogative State and the power of the Nazi party.
Unique and most important aspects
The Dual State is both authoritative and authentic, as evidenced by the quality of the text and the very nature of its creation. It was written in secret by a German, Jewish lawyer as the Nazis increased their power and brutality in the years leading up to the start of World War II. The author completed the draft of The Dual State while still in Nazi Germany and smuggled the manuscript out of the country in pieces.
While it is a significant and insightful work, I found The Dual State to be a challenging read. The book was published over 80 years ago, having been written in German and translated into English. The text has a strongly academic tone, full of dense ideas and references. I rated this book lower mainly due to its lack of readability; it could benefit from editing to include shorter paragraphs and more effective punctuation. Important features of this book include:
Defining and contrasting the Normative State and Prerogative State, and the Dual State and the Rule of Law
The impact of jurisdiction in the Dual State
The role of the secret police and the use of martial law in the Dual State
The dictator’s use of a manufactured enemy (specific people groups) to justify subversion of the Rule of Law
The enactment of double jeopardy and retroactive capital punishment in criminal cases to empower and embolden the Prerogative State
Concepts of Natural Law: societal vs. communal, rational vs. irrational
Comparing and contrasting the early dualistic state to the Dual State
Best quotes
“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.”
“In a speech at Weimar in July 1936, Hitler himself defined the line of demarcation between state and party. He asserted that government and legislation should be the task of the party, administration the task of the state.”
“Martial law provides the constitution of the Third Reich.”
“Endowed with all the powers required by a state of siege, the National-Socialists were able to transform the constitutional and temporary dictatorship (intended to restore public order) into an unconstitutional and permanent dictatorship and to provide the framework of the National-Socialist state with unlimited powers.”
“The legend of the legal revolution is built around Adolf Hitler’s identification of his person with public ‘order’; the history of the illegal coup d'état is characterized by the identification of ‘order’ with Hitler’s person.”
“The Dual State lives by veiling its true nature.”
“The Rule of Law no longer exists. It has been supplanted by the Dual State, which is the joint product of the Prerogative State and the Normative State.”
“If a paradox were permitted it might be said that the Third Reich is a theocracy without a god.”
“Once Jews had been eliminated from the economic life, it was possible to deprive them of all legal protection without adversely affecting the economic system.”
“Hitler became Germany’s absolute ruler after he had previously (by the Decree of February 28, 1933) acquired the power of a despot.”
“It is indeed for the maintenance of capitalism in Germany that the authoritarian Dual State is necessary.”
“In the dualistic state every single act of legislation or fiscal policy expressing the will of the state is the result of a particular agreement. The constitutional history of the dualistic state is the history of perpetual compromises. The Dual State, however, is primarily characterized by the prevalence of one general and all-inclusive compromise.”
“The followers of a charismatic leader (Führer) do not constitute a community (Gemeinschaft) but rather a fraternity (Bund)…But at bottom, they do not want a revolution in the structure of society. They do not attack the present order; rather they complain that other people and not they are in power within this order. They desire only the supplanting of the ruling élite by a new élite formed from their fraternity.”
“The myth of a ‘permanent emergency’ would not find credence if it could not be shown that a hostile army is permanently ready to attack. Thus, if there are no real enemies, they have to be created. Without enemies, there can be no danger, and without danger, there can be no communally oriented attitudes, and without communally oriented attitudes there could be no ethnic community. Were there no ethnic community then associations based on religious, ethical, social or political values could not be suppressed.”
“The violence of the German tyranny is indicative not only of its power but also of its fear of losing that power, a sign not only of its political strength but also of its social weakness.”
Who would enjoy this book?
Readers interested in a historical, academic text on the concept of the dual state as it existed in Nazi Germany will likely enjoy The Dual State.
Who would not enjoy this book?
Readers seeking an easily accessible text that covers the concepts of the dual state, parallel governments, or shadow governments are unlikely to enjoy The Dual State.
Conclusion
The Dual State is an essential yet challenging read for anyone seeking to gain a deeper understanding of the history of the dual state in Nazi Germany and the threat a dual state poses to any constitutional democracy.
