Legal Theory and the Politics of Legal Space
34 Pages Posted: 30 Jun 2020
Date Written: May 31, 2020
Abstract
In The Dual State, Ernst Fraenkel argued that the Nazi state was a Dual State which consisted of two states that existed side by side. On the one side was the Normative State, which contained whatever remained of the law and institutions of the Weimar legal order. On the other side was the Prerogative State, which consisted of the apparatus of the Nazi Party wherein the leader’s will was the ultimate source of authority. Fraenkel observed that the law of the Normative State governed relationships between individuals and between individuals and state institutions only as long as officials in the Prerogative State did not find such government inconvenient. He concluded that the rule of law did not obtain in Nazi Germany. I contrast the Dual State with three other juridical state forms: the Rule-of-Law State in which all official action is subject to law, the officials are answerable for their actions before the ordinary courts, and the law to which they are answerable includes both the positive law that authorizes their actions and legal principles embedded in the law protective of individual rights; the Parallel State in which two legal orders are united at the top but otherwise sealed off from each other; and the Apartheid State in which vast exceptions to the general law are made in order to discriminate against one or more groups. All three are on what I call the ‘continuum of legality’, which means that those who are subject to its law will be part of a ‘jural community’--the community of legal subjects bound together by law. To be subject to the law is to be able to get an answer to the question, ‘But, how can that be law for me?’ The kind of answer one can get is deeply affected by where one’s state is on the continuum, which reveals the politics of legal space.
Keywords: Dual State, Rule of Law, Philosophy of Law, HLA Hart, Lon Fuller, Ernst Fraenkel
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