BackFraenkel’s theory of the dual state may need an update
The ratio of normative and prerogative state authority seems to differ under populist dictatorships
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In The Dual State: A contribution to the Theory of Dictatorship, first published in 1941 after its author fled Germany, Ernst Fraenkel developed a theory based on his experience as an attorney in the Berlin Court of Appeals in Nazi Germany between 1933 and 1938. He was a witness to the decay of the German legal system after the passage of the Reichstag Fire Decree and Enabling Act, which gave the “prerogative state" powers that were used to override the “normative State", as the usual rights were denied to those defined by the state as its enemies, such as communists, liberals, even conservatives, and of course Jews. The latter’s personal status was restricted under the Nuremberg laws. This was after they were left a limited sphere in the country’s economic system. By 1936, the Reich Supreme Court had declared them “legally dead".
The major difference between dictatorships and democracies is the latter’s inflexible implementation of the rule of law. In a democracy, everybody is equal in the eyes of the law. The law is codified and not arbitrary, applied equally in each case, without exception, and has the mandate of the governed. This is usually in the form of a constitution, with laws enacted by democratically-elected legislatures consistent with it. There are institutions at arm’s length from the state, most notably the judiciary, to uphold laws.
Distinguishing dictatorships from democracies in the 20th century was easy. The latter had constitutions in place based on Enlightenment principles such as individual liberty, equality before the law, humanism, reason, and secularism informed by religious universalism. Periodic elections were held based on universal franchise, and the laws made in compliance with the constitution were enforced by the state, with anomalies and disputes resolved through an independent judicial system. Dictators overthrew such constitutions and imposed draconian laws without the sanction of popular will, centralizing power in their own hands. Several right- and left-wing dictatorships, including that in the former Soviet Union, used such means. Yet, dictators could also be elected through the ballot box, which they subsequently suspended, abolished or subordinated to their will. The Emergency of the 1970s in India bore some characteristics of this, though Adolf Hitler’s power-grab was by far the most egregious example; he never intended to adhere to the Weimar Constitution at all.
Does that mean that there is no place for the rule of law in dictatorships?
It is extremely difficult to organize society or a production process where there is no underlying consensus and trust among stakeholders on the predictability of outcomes if these vary from case to case. It would be impossible to run a capitalist system in such circumstances, or to maintain social order, if there are no rules for private and intangible property, entrepreneurial freedom, sanctity of contracts, unfair competition, labour employment, etc. The special provisions or new laws brought in by 20th century dictators curtailed individual liberties in the political domain. The laws relating to civil society remained mostly in place, with arbitrary exceptions in a few cases where the state used its specially acquired overriding powers.
Fraenkel’s theory of dictatorships and the dual state has resonance in current times. According to him, there existed a dual state under dictatorships, comprising both a normative and prerogative state. Germany had one of the best legal systems in Europe, and the normative state continued to function in day-to-day transactions even under Nazi rule. The prerogative state, on the other hand, “was that governmental system that exercises unlimited arbitrariness and violence unchecked by any legal guarantees". Both existed simultaneously.
In the 21st century, it has technically become harder to tell democracies apart from populist dictatorships. Having learnt the 20th century lesson that overthrowing constitutional and legal structures loses the regime legitimacy, with their power proving pyrrhic and short-lived, the latter have kept formal legal structures in place, including constitutions, laws, extant institutions, universal adult franchise and the judiciary. Instead, they use the popular mandate and their cult status to buttress their power, even though they might surreptitiously tamper with electoral processes. They are akin to what another political theorist, Carl Schmitt, described as “sovereign dictators" in his 1921 classic Die Diktator. Since the state and its allied pressure groups are able to bend institutions, even though they do not always get their way, the picture gets muddied. A straightforward application of Fraenkel’s theory falls short, as there are no special prerogative provisions.
Modern dictatorships solidify their hold on power not through special laws, but by leveraging their executive authority under extant laws to capture legal and other civil society institutions. They appoint minions to key positions, and through them use legitimate institutions to enforce the will of the prerogative state. The normative state functions normally in most cases. But by controlling the outcomes of only a few cases, the prerogative state captures all state power. Populist dictatorships have proliferated across the world’s democracies, from Latin America to Eastern Europe and Asia, even as cult-based rightist parties have gained sway in the US and Western Europe. Whether they will prove more durable than dictatorships of 20th century remains to be seen.
Alok Sheel is RBI chair professor in macroeconomics, ICRIER
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