JUSTICE - No. 66

55 Spring 2021 n late July 1936 – four years into a labor dispute – Germany’s Supreme Labor Court heard oral argument in the Delatowsky case. The lawyer, Ernst Fraenkel, entered the courtroom. His adversary, Dr. Hermann Meissinger, had also arrived – with new co-counsel – and hurriedly whispered a warning to Fraenkel: “Caution, Gestapo!” The warning was timely for any lawyer in Nazi Germany, especially for one like Fraenkel – a Jewish Marxist labor lawyer who had belonged to the Social Democratic Party before the new Nazi government banned it in June 1933. Cautioned or not, Fraenkel proceeded with oral argument. The case involved the Gleichschaltung – the enforced Nazification – in 1933 of the German Freethinkers Alliance ( Deutsches Freidenker-Verband ), which eliminated the former political character of this alliance for leftist workers while leaving in place its commercially profitable cremation society. The Nazi regime purportedly destroyed the alliance and took over its cremation society, renaming it as The New German Funeral Association ( Neue Deutsche Be st attungskasse ), and then, in 1935, as The Patriotic People’s Insurance Association ( Vaterländische Volksversicherung ). Fraenkel represented several dismissed employees. They had sued the association for severance pay based on a collective bargaining agreement from 1932 – that is, from the Weimar era, from before the Gleichschaltung , from before the enforced Nazification. But the Nazified association denied that it was obligated to make severance payments, claiming that the Nazi state had transformed the formerly Marxist alliance into a new Nazi body. In court, a back-and-forth ensued between Fraenkel and the Gestapo lawyer. Fraenkel argued that the association remained a continuing entity bound by its earlier obligations. The Gestapo lawyer answered that the association owed nothing to dismissed employees since the former organization had been eradicated and reconstituted into a new one. In other words, the Nazi state could – simply by its own say-so – dissolve a prior entity and erase its obligations. Fraenkel objected. The state’s sovereign act could not create a private organization out of nothing. The Gestapo lawyer countered that the Gestapo could undertake with legal effect everything that it deemed necessary. Taken aback, Fraenkel asked: “Even dissolve a marriage?”The Gestapo lawyer retorted: “Without doubt!” What did the Supreme Labor Court do? The court rendered a decision the very same day. It ruled in favor of the dismissed employees. Fraenkel had won the case on behalf of his clients! The court reasoned that the Gestapo could accomplish its political goals – it could transform the association’s political character – and still adhere to the association’s prior contractual obligations. How did the Gestapo respond to this legal defeat? It simply seized the association’s assets anyway. It took the money owed to the dismissed employees and deposited it into Prussia’s coffers. Taken as a whole, what had happened in this case? Fraenkel’s procedural success in court had ultimately collapsed into failure in terms of the practical outcome. That turn of events helped Fraenkel to crystalize his thinking about the Nazi legal/political system. He had an epiphany – or as much an epiphany as a Jewish Marxist labor lawyer could have. With the Delatowsky case, Fraenkel realized that the Nazi legal/political system was a “dual state,” that is, a state characterized by the interplay between arbitrary power and a Nazified legal system – or a Nazifying one. On the one hand, there was arbitrary power. When dissatisfied with a judicial decision, the Gestapo could unilaterally set it aside. On the other hand, there was the Nazified legal system. The legal system continued to operate, under the thumb of the Gestapo’s intimidation and ultimate decisive power. The Origins of the Nazi Dual State of Arbitrary Power and Nazified Law* I Douglas G. Morris * Paper accompanying the Virtual Panel: “The Nazi Rise to Power and the Weimar Constitution.”For supporting authority, see Douglas G. Morris, L EGAL S ABOTAGE : E RNST F RAENKEL IN H ITLER’S G ERMANY (Cambridge University Press, 2020), pp. 4-5, 40-41, 94-99 and accompanying footnotes.