JUSTICE - No. 66

56 No. 66 JUSTICE A prime example of this dual state was the Delatowsky case itself, in which the Gestapo sent at least three messages about how law and politics now interacted. First, the Gestapo sent the message that, on occasion, it would let the judiciary function. The Gestapo gave the court the chance to decide. But when failing to decide in its favor – when crossing the Gestapo – the court put itself at risk. The judiciary had to decide whether to preserve or jeopardize its own legitimacy. Since the Gestapo would win no matter what, courts had to choose between ruling for the Gestapo immediately, and preserving some of their own legitimacy, or ruling against the Gestapo, and embarrassingly losing some of that legitimacy. Whether winning or losing, the Gestapo was politicizing the legal system as part of the Nazi state’s overall consolidation. The second message that the Gestapo sent in the Delatowsky case was that it, not a court, would decide what was politically necessary. Forget about the notion that the court could slice it and dice it, declaring that the Gestapo could accomplish its political goals and still adhere to the association’s prior contractual obligations. The Gestapo would decide for itself how to accomplish its political goals. In the Delatowsky case, the Gestapo made sure that those terminated employees – its ideological opponents – would reap no financial benefit from previous Weimar era contractual rights. The Gestapo lawyer’s argument that the Nazi state could even dissolve a marriage and declare it void delivered a third message: The Nazi state could reshape any legal relationship, not only a collective bargaining agreement, which was a relatively recent form of contract, basically a Weimar era innovation, but also a marriage, one of the most traditional forms of contract, a deeply embedded social practice. In claiming such sweeping control over marriage, the Gestapo lawyer implied that the Nazi state could assert the authority to reshape almost any legal relationship, not only legal contracts but also social custom. As illustrated by these three Gestapo messages, the Delatowsky case provided a vivid example of the Nazi dual state. It would politicize whatever it saw fit, use its power to enforce a new politics, and destroy the legal remnants from the Weimar Republic and much earlier times, too. In the late 1930s, while still in Nazi Germany, Fraenkel wrote his classic book: The Dual State . 1 When originally published in English in 1941, Fraenkel expressed his theory in terms of what he dubbed “the prerogative state” and “the normative state.” The prerogative state was the realm of arbitrary power and official violence – intimidating violence – against which citizens enjoyed no legal protection. The normative state was the legal order, which included traditional law and newly enacted Nazi law. But that normative state was decidedly not the same as, or based on, the liberal rule of law, in which neutral tribunals treat all people equally in applying impartial law. This dual state consisted of a dynamic interplay between the prerogative state and the normative state, with the arbitrary power of the prerogative state leading the way and the Nazifying legal system of the normative state playing catch-up. The prerogative state reshaped the normative state in its image, transforming the whole legal/political system. In the Delatowsky case, the prerogative state (embodied in the Gestapo) defeated – and taught a lesson to – the normative state (embodied in the courts). Let us add here another detail of the Gestapo lawyer’s courtroom argument. He relied in part on Nazi-era laws allowing the confiscation of property of communists and other enemies of the state. What is interesting is that these particular laws in the Nazifying normative state originated in the prerogative state itself: the Reich st ag Fire Emergency Decree of February 28, 1933. On February 27, 1933, Germany’s Reichstag – its parliament building – burned. That fire provided the pretext the following day for an emergency decree titled, “For the Protection of People and State.” In his book, The Dual State , Fraenkel aptly described that decree as in actuality the“constitutional charter of the Third Reich.” The decree purported to protect Germany against communist violence. It indefinitely suspended civil liberties guaranteed in the Weimar constitution, empowered the national government to intervene in order to restore order whenever and wherever necessary, and transformed Nazi rule into a permanent dictatorship with unlimited arbitrary political power. The“Reichstag Fire Emergency Decree”set in motion the establishment of a regime consisting of the prerogative state and the normative state. The Nazis had created a dual state in an abrupt transition to Nazi rule from the Weimar Republic’s constitutional order. n Douglas G. Morris, J.D., Ph.D., Assi st ant Federal Defender, Federal Defenders of New York, and independent legal hi st orian. He is the author of “Legal Sabotage: Ern st Fraenkel in Hitler’s Germany” (Cambridge University Press, 2020), and “Ju st ice Imperiled: The Anti-Nazi Lawyer Max Hirschberg in Weimar Germany” (University of Michigan Press, 2005). 1. Ernst Fraenkel, T HE D UAL S TATE . A C ONTRIBUTION TO THE T HEORY OF D ICTATORSHIP , translated from the German by E. A. Shils, in collaboration with Edith Lowenstein and Klaus Knorr (NewYork: Oxford University Press, 1941).