In 1941, the German Jewish lawyer and political scientist Ernst Fraenkel published a slender volume called The Dual State. One of the first scholarly treatments of the Third Reich, Fraenkel understood Hitler’s state to be characterized by an unusual “dual” character. In large measure, the state operated by arbitrary decree – something Fraenkel called rule by “prerogative”. This “prerogative state” essentially functioned as a form of institutionalized lawlessness. At the same time, the Third Reich also maintained elements of a “normative state” – that is, an administration of justice that remained, at least formally, bound by operative law.
Without drawing any false equivalence with the Nazi state, we can say
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