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The man…was a Jewish labor lawyer named Ernst Fraenkel.He completed his manuscript…at UC, publishing it as The #DualState, w/the modest subtitle A Contribution to the Theory of #Dictatorship.The book explains how the #Nazi regime managed to keep on track a #capitalist economy governed by stable #laws—& maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of #lawlessness & state #violence in order to realize its terrible vision of #EthnoNationalism.

Fraenkel offered a simple, yet powerful, picture of how the #constitutional & #legal foundations of the Weimar Republic eroded, & were replaced by #strongman-style rule in which the commands of the #Nazi Party & its leader became paramount. His perspective was not grounded in abstract political theory; it grew instead from his experience as a Jewish lawyer in Nazi Berlin representing #dissidents & other disfavored clients.

Academic in tone, The #DualState sketches a template of emerging #tyranny distilled from bloody & horrifying experience.

As Fraenkel explained it, a #lawless #dictatorship does not arise simply by snuffing out the ordinary #legal system of rules, procedures, & precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious.

Rather than completely eliminating the normative state, the #Nazi regime slowly created a parallel zone in which “unlimited arbitrariness & #violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary #law didn’t apply. (A #PrerogativePower is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from #JohnLocke onward have offered various formulations of the idea.)

In this prerogative state, #judges & other legal actors deferred to the #racist hierarchies & ruthless expediencies of the #Nazi regime.

The key here is that this prerogative state does not immediately & completely overrun the normative state. Rather, Fraenkel argued, #dictatorships create a #lawless zone that runs alongside the normative state. The 2 states cohabit uneasily & unstably. On any given day, people or cases could be jerked out of the normative state & into the prerogative one.

In July 1936, for example, Fraenkel won a case for employees of an association taken over by the #Nazis. A few days later, he learned that the #Gestapo had seized the money owed to his clients & deposited it in the government’s coffers. Over time, the prerogative state would distort & slowly unravel the #legal procedures of the normative state, leaving a smaller & smaller domain for ordinary #law.

…it was a mistake to think that even the #Nazis would entirely dispense w/normal #laws.…They had a complex, broadly #capitalist economy to maintain. “A nation of 80M people,”…needs stable rules. The trick was to find a way to keep the #law going for #Christian Germans who supported or…tolerated the Nazis, while ruthlessly executing the #führer’s directives against the state’s enemies, real & perceived. #Capitalism could jog nicely alongside the brutal suppression of #democracy, & even #genocide.

The list of measures purpose-built to cleave off a domain in which the #law does not apply grows by the day: the #pardons that bless & invite #insurrectionary #violence; the #purges of career lawyers at the #DOJ & #SDNY, #InspectorsGeneral across the govt, & snr #FBI agents; the AG’s command that attys obey #Trump over their understanding of the #Constitution; the appointment of people such as #KashPatel & #DanBongino, who…view loyalty to Trump as more compelling than their constitutional oath;

#Trump’s declaration that he & the AG are the sole authoritative interpreters of federal #law for the executive branch; the transformation of ordinary spending responsibilities into discretionary tools to punish partisan foes; the stripping of #security clearances from perceived enemies & opponents; the threat of #criminal prosecutions for #speech deemed unfavorable by the president; & the verbal attacks on #judges for enforcing the law.

The singular aim of these tactics is to construct a prerogative state where cruel caprice, not #law, rules. By no measure does the extent of law displaced in the first few months of the #Trump admin compare w/the huge tracts of the Weimar’s legal system eviscerated by the #Nazis. But it is striking how Trump’s EOs reject some basic tenets of American constitutionalism—such as #Congress’s power to impose binding rules on spending & regulation—w/o which the normative state cannot persist.

The CEOs who paid for & attended #Trump’s second inauguration can look forward to the courts being open for the ordinary business of #capitalism. So, too, can many citizens who pay little attention to politics expect to be unscarred by the #PrerogativeState. The normal criminal-justice system, if only in [Trump perceived] *nonpolitical* cases, will crank on. Outside the American prerogative state, much will remain as it was. The #NormativeState is too valuable to wholly dismantle.

For that reason, it shouldn’t come as a surprise that #Trump’s lawyers—despite running roughshod over #Congress, the #states, the #press, & the #CivilService—were somewhat slower to defy the federal courts, & have fast-tracked cases to #SCOTUS, seeking a judicial imprimatur for novel #PresidentialPowers. The #courts, unlike the legislature, remain useful to an #autocrat in a #DualState.

Building a #DualState need not end in #genocide: Vladimir #Putin’s #Russia & #LeeKuanYew’s #Singapore have followed the same model of the dual state that Fraenkel described, though neither has undertaken a mass-killing operation as the Nazis did [Putin has, just not within Russian borders on a genocidal scale]. Their deepest similarity, rather, is that both are intolerant of #PoliticalDissent & leave the overwhelming majority of citizens alone.

The peril of the #DualState lies precisely in this capacity for targeted suppression. [Many]…people can ignore the construction of the #PrerogativeState simply because it does not touch their lives. They can turn away while dissidents & scapegoats lose their political #liberty. But once the prerogative state is built, as Fraenkel’s writing & experience suggest, it can swallow anyone.

@Nonilex

Cartoon found yesterday at
@thetnholler.bsky.social

@Nonilex @thetnholler.bsky.social

Now I understand the reference better than I did; political art, now better seen through the lenses of history.

@darnell @Nonilex I often refer to Hungary (my home country) as the “következmények nélküli ország”, a country without repercussions, so this largely tracks, even if not as overtly as Nazi Germany (or the speedrunning that Trump is doing right now); largely (I think) because at least some semblance of pretense and "checks & balances" need to be maintained towards the EU (in particular, to receive EU funding). But overall Hungary is tending towards a parallel reality existing for friends (and for foes) of the ruling party/Orbán