After the end of National Socialism, the young West German political science saw itself as the vanguard of German democratization. In West Berlin in particular, political scientists such as Ernst ...Fraenkel, Ossip Flechtheim and Otto Heinrich von der Gablentz were especially enthusiastic at the German School of Politics. They saw themselves as "preachers of democracy" in postwar Germany. This study examines how these actors transferred their pluralistic theories of democracy into practical political education. Thus, at the intersection of the history of ideas, institutions, and biographies, it contributes to the question of how West German democracy succeeded after 1945.
Despite its central relevance for our understanding of the Nazi regime, Ernst Fraenkel’s book The Dual State, first published in the United States in 1941 and (re)translated into German in 1974, has ...received unequal attention from various historical angles. The article argues that Fraenkel’s work should be understood as a history of law. With a focus on labour law and using a praxeological approach that follows Fraenkel’s perspective, it illustrates how and why the boundaries between the normative state and the prerogative state shifted. However, we should not regard Fraenkel’s categories as describing a strict opposition between state and party; rather, we must investigate more thoroughly the dynamics and appropriations beyond these boundaries. The article shows how the state penetrated the private realm of labour law, thereby transforming employers and employees from subjects to objects of labour law. This was only possible because all entities – including administrative, judicial and police authorities – acted together. ›Trustees of Labour‹ and the Gestapo continued to expand the system of ›corrective labour camps‹. As a consequence, the law gradually ceased to limit those in power and became instead an instrument of domination. In the end, the courts no longer controlled the administration; it was now the authorities that controlled the judicial and legal practices. * * * Ernst Fraenkels Buch »Der Doppelstaat«, 1941 in den USA erschienen und erst 1974 auf Deutsch publiziert, weist trotz seiner zentralen Stellung in der Forschung zur NS-Herrschaft eine lückenhafte Rezeptionsgeschichte auf. Der Aufsatz plädiert dafür, das Werk als Rechtsgeschichte zu verstehen. Am Beispiel des Arbeitsrechts wird aus einer praxeologischen, Fraenkel folgenden Perspektive deutlich gemacht, wie und warum sich die Grenzen zwischen Normen- und Maßnahmenstaat verschoben. Diese Kategorien bezeichnen nicht etwa den Gegensatz zwischen Staat und Partei; vielmehr ist genauer nach dynamischen Grenzüberschreitungen und Rechtsaneignungen zu fragen. Dargelegt wird, wie das privatrechtliche Gepräge des Arbeitsrechts staatlich durchdrungen wurde, sodass sich Arbeitgeber und Arbeitnehmer von Subjekten zu Objekten des Rechts der Arbeit wandelten. Möglich wurde dies nur durch das maßnahmenstaatliche Handeln sämtlicher Instanzen aus Verwaltung, Justiz und Polizei. »Treuhänder der Arbeit« und Gestapo dehnten das System der »Arbeitserziehungslager« immer weiter aus. Das Recht verlor sukzessive seine herrschaftsbeschränkende Funktion und geriet zu einem Herrschaftsmittel. Nicht mehr die Gerichte kontrollierten die Verwaltung, sondern die Behörden lenkten die Gerichts- und Rechtspraktiken.
The Dual State in Turkey Tekin, Serdar
European journal of Turkish studies,
07/2023, Letnik:
34, Številka:
34
Journal Article
Recenzirano
Odprti dostop
Exploring the post-2015 phase in Turkey’s autocratization process through a conceptual perspective based on Ernst Fraenkel’s The Dual State, this paper argues that Turkey’s political regime has ...evolved into a dual system of rule, characterized by the concurrent existence of a “normative state” that somehow observes its own laws and a “prerogative state” acting arbitrarily beyond the law. The paper begins with a selective survey of the recent work on contemporary forms of authoritarianism. The following section introduces Fraenkel’s original conception of the dual state and offers an interpretive outline regarding its analytical value for contemporary studies of autocratization. Portraying the post-election period in 2015 as a critical juncture in the formation of the dual state in Turkey, I then explore how a sweeping wave of securitization along with the extensive abuse of emergency powers created an extralegal sphere and fostered a comprehensive institutional transformation towards dual state. The article’s final section discusses what is new about this transformation in the broader context of Turkish constitutional history.
A Dual State in Turkey? Krumm, Thomas
Zeitschrift für vergleichende Politikwissenschaft,
2024/3, Letnik:
18, Številka:
1
Journal Article
Recenzirano
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In research on authoritarianism in Turkey and beyond, there is a growing interest in Ernst Fraenkel’s concept of the dual state from the Nazi era. However, upon closer inspection, these articles lack ...a systematic application and implementation of Fraenkel’s concept. Mostly, there is no discussion of the strengths and weaknesses of such a ‘diachronic’ conceptual transfer. This case study therefore puts particular emphasis on the methodological issues and on the possibilities and limitations of an ‘updated’ application. As a result, it turns out that Fraenkel’s categories are useful tools to trace how the Turkish administration and judiciary are reorganized along a logic of prerogative power. Fraenkel’s state-centred approach can thus contribute to close a gap left by alternative approaches. However, among the weaknesses even of Dreier and Meierhenrich’s supplement is that the time dimension was, respectively is, not sufficiently taken into account. Dual state structures can be more sustainable than originally assumed by Fraenkel.
This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 ...(roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.
After World War II, the United States established the US Army Government in Korea (USAMGIK, 1945–48) in South Korea, and tried to justify its military occupation by international law, particularly ...the Hague Convention IV (1907). The Convention stipulates an occupant’s right to take all the measures necessary to restore public order and safety and his or her duty to respect the indigenous law. Considering the changed situation during World War II, however, where the military institutions of the Axis Powers drove their aggression into other countries, it was inevitable that the Allied Powers would modify the convention to apply it to the occupied countries. Since Japanese public or private property comprised the most wealth in colonial Korea, one of the key issues that USAMGIK faced in liberated Korea was how to handle former Japanese property, ultimately culminating in the confiscation of all Japanese property into the possession of USAMGIK. Thus, this article expounds this thorny issue by dealing with the rationale of this change of the international law, specifically a religious one, with the cy pres (as near as possible) principle, a category that USAMGIK handled with discretion compared to commercial or government property. Consequently, this article shows that USAMGIK ultimately facilitated a close relationship between Christianity and the state in post-war Korean society.
The objective of this article is to contribute to an understanding of Hannah Arendt’s special place in present-day political theory by means of a contrast between her Origins of Totalitarianism and ...four important political science studies of National Socialism and totalitarianism, three written by authors who shared the status of involuntary emigrant with Arendt, that are offered as constituting the original context of her work. A critical appreciation of the seminal works by Ernst Fraenkel, Franz L. Neumann, Sigmund Neumann, and Carl Joachim Friedrich and Zbigniew Brezinski, with special emphasis on questions of method, opens the way to a reconsideration of the distinctly philosophical character of Arendt’s work, and its shocking challenges to the scientific orientations of political science.
The Dual State and Fascism Sorensen, Gert
Totalitarian movements and political religions,
12/1/2001, Letnik:
2, Številka:
3
Journal Article
Starting with Fraenkel's The Dual State (1941), based on the author's experience with the Nazi regime, this article examines to what extent the concept of the dual state can be applied to Italian ...Fascism. Elaborating on Carl Schmitts's concepts of mandatory & of absolute dictatorship, Fraenkel defines the dual state as an unifying complexity of structures & methods that combine normative & prerogative power. The dual state in Fascist Italy is an example, to almost the same degree, of emergency measures being undertaken to prepare the conditions necessary for the further development of a fascist revolution. This article, therefore, suggests that the concept of the dual state is more adequate for analyzing, ie, relations between the monarchy & Fascism from the "March on Rome" onward, than concepts such as "diarchy," which does not embrace the complex reality of the subordinated role of the king & of normative traditions represented by the statuto. Adapted from the source document.
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