Ernst Fraenkel’s book The Dual State: A Contribution to the Theory of Dictatorship offers instructive and ominous reading today. Written during the rise of Hitler’s National-Socialist state by a German Jewish lawyer, it serves as a piece of “ethnographic study of the transformation of the authoritarian state” by a covert participant-observer. Fraenkel published The Dual State in 1941 after he left Germany and joined the faculty at the University of Chicago. Fraenkel (1896-1975) was Jewish, but he was also a veteran of World War I and was therefore exempt for a time from the expulsion of Jews from the legal profession. He wrote a detailed analysis of the creation by the Nazi regime of a dual state. His fundamental insight, explored in detail in the book, is that Hitler’s totalitarian state was in fact a “dual” state. It consisted of a fairly traditional system of laws and rules governing business, contracts, property, and other issues of ordinary life in civil society (the Normative State) and simultaneously it embodied a dictatorial state consisting of edicts and executive orders from the Hitler regime (the Prerogative State).
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. (ix)
Fraenkel’s key insight was that this duality was not transitional; it was not simply a moment in time during the process of creating a totalitarian state that governed every aspect of life in Germany. Instead, it was an ongoing necessity created by the fact that Germany required a reasonably predictable legal and business environment in which companies could do the work of preparing for a war economy. The Normative State could not overrule the dictates of the Prerogative State; but the great bulk of transactions in a modern political and economic system do not need special “one-of-a-kind” dictates to function. And at moments of conflict between the apparatus of the two states, the Prerogative State invariably prevailed.
The National-Socialist state is remarkable not only for its supreme arbitrary powers but also for the way in which it has succeeded in combining arbitrary powers with a capitalistic economic organization. One of the basic propositions of Max Weber’s works is that a rational legal system is indispensable for the operation of a capitalistic economic order. (xiv)
Reading The Dual State in 2026 creates a harrowing sense of familiarity: so many of the steps towards dictatorial rule and the Prerogative State in 1933-36 seem to have close parallels with developments in the United States today. Rule by presidential decree, empowerment of legions of unregulated “Homeland Security police”, and methodical dismissal of existing constitutional limitations on the power of the president — these developments are familiar in the US since January 2025, and Fraenkel documents highly similar steps in the creation of the National-Socialist state in 1933-36.
How did the dictatorial state get established in Germany at the end of the Weimar Republic? The answer is prophetic when we consider the strategy pursued since January 2025. Trump promised to be a “dictator for a day”, and has largely attempted to rule by Executive Order rather than by legislation through Congress. He has expressed contempt for the Federal judiciary and the Congress and has made it plain through his actions and decrees that he intends to rule by fiat. This is precisely how Hitler’s regime began, according to Fraenkel:
Martial Law provides the constitution of the Third Reich. The constitutional charter of the Third Reich is the Emergency Decree of February 28, 1933. On the basis of this decree the political sphere of German public life has been removed from the jurisdiction of the general law. Administrative and general courts aided in the achievement of this condition. The guiding basic principle of political administration is not justice; law is applied in the light of ‘the circumstances of the individual case,’ the purpose being achievement of a political aim. (1)
The legal framework of the Prerogative State was established by conferring “absolute dictatorial power [upon] the Leader and Chancellor either personally or through his subordinate authorities…. The sovereign power of the Leader and Chancellor to act unhampered by restrictions is now thoroughly legalized.” (4)
And what about the forces of repression at the command of the state? Fraenkel shows how this function devolved onto the Secret State Police (Gestapo):
Outstanding among the executive branches of the absolute dictatorship is the Secret State Police (Gestapo). This body has always been and still is organized in accordance with state law. In Prussia, the functions of the Gestapo are regulated by three statutes. The Office of the Secret Police was established in April 1933. The Secret State Police was transformed into a special police force in November 1933. The general powers of the Gestapo were finally defined by the Prussian statute of February 10, 1936, which revoked the earlier statutes. (7)
Again, there is a terrible parallel between this development in 1933 and the sudden and reckless expansion and unleashing of Homeland Security and ICE agents against the citizens of numerous US cities. Has Homeland Security become the Trump administration’s Gestapo?
The next step in the formation of the National-Socialist state in 1933 was to formally establish that the security and police organs of the state were no longer subject to legal limitation or review:
In their enforcement of the Decree of February 28, 1933, the police are neither bound by the provisions of the Constitution nor by any other law. The Prussian Supreme Court (Kammergericht) in a decision of May 31, 1935, held that ‘the Prussian Executive Decree (Durchfuhrimgsverordnung) of March 3, 1933, leaves no doubt that Par. 1 of the Decree of February 28, 1933, . . . removes all federal and state restraints on the power of the police to whatever extent is required for the execution of the aims promulgated in the decree. The question of appropriateness and necessity is not subject to appeal.’ (14)
And in fact, the Gestapo simply disregarded the rulings of high courts concerning its actions:
Although the Reichsgericht [court] supported the Supreme Administrative Court, the Gestapo disregarded its decisions. A leading official of the Gestapo, Ministerialrat Eickhoff, characterized theGestapo as a ‘general staff, responsible for the defense measures as well as the equally necessary offensive measures against all the enemies of the state.’ (18)
So any action taken by Gestapo forces was formally and legally unchallengeable. Fraenkel goes into more detail about the “abolition of judicial review” of police actions later in this same chapter, quoting a legal adviser to the Gestapo.
‘The task of combatting all movements dangerous to the state implies the power of using all necessary means, provided they are not in conflict with the law. Such conflicts with the law, however, are no longer possible since all restrictions have been removed following the Decree of February 28, 1933, and the triumph of National-Socialist legal and political theory.’ (23)
This sounds very close to the claims of “absolute immunity” that leaders within the Trump administration have asserted on behalf of Homeland Security and ICE agents in the conduct of their duties. The murder of Renée Nicole Good, it appears, will go entirely unpunished.
Essentially Fraenkel demonstrates that the Prerogative State of National Socialism depends upon the idea that the Supreme Leader and his associates have complete authority in deciding what is to be done for the nation. No courts, no legal framework, no constitution can limit that authority. Fraenkel notes that an earlier advocate for unlimited monarchical power made very similar arguments for the unlimited and unconstrained authority of the “monarch” three centuries earlier:
More than 300 years ago a similar demand was made in England. King James I, in his famous message to the Star Chamber (June 20, 1616), declared that in political questions the decision rested with the Crown and not with the Courts. ‘Encroach not upon the prerogative of the Crown. If there fall out a question that concerns my prerogative or mystery of State, deal not with it till you consult with the King or his Council or both; for they are transcendent matters … As for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blasphemy to dispute what God can do . . . so it is presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that. (36)
No wonder the demonstrations around the United States expressing citizen resistance to the authoritarianism of the Trump regime are organized around the slogan, “No Kings!”. We live in a constitutional republic, and no individual or party is unconstrained by constitution and law.
