Imagine “a concentration camp inmate successfully filing his tax complaints” with the state authorities (p. 189). A state exhibiting this sort of contradictory behavior—exercising arbitrary power to confine someone extrajudicially while simultaneously redressing his technically valid tax complaint—would seem schizophrenic. Yet this dual state was a reality in Nazi Germany, argues Jens Meierhenrich in his The Remnants of the Rechtsstaat. Building on the work of Ernst Fraenkel, Meierhenrich defines a dual state as “a hybrid authoritarian regime marked by the concurrent existence of a normative state that governs in accordance with legal norms and institutions and a prerogative state that governs wantonly” (p. 245). Besides the historical value of demonstrating Nazi Germany’s dual nature, the author shows that this concept also has practical value today because it sheds light on the nature and practice of law in authoritarian states (p. 18). In advancing his argument, Meierhenrich makes an important contribution to legal and political thought.

A still prevalent view of the Nazi state, first advanced by legal theorists like Gustav Radbruch and Franz Neumann, is that it was a state of chaos, an Unrechtsstaat, in which the law simply did not matter (pp. 5, 11, 28). Meierhenrich shows us that although many Nazi jurists held a corrupted understanding of the substance of law and morality, many nevertheless maintained a firm belief in the value of legality: “[E]ven the most hardened [Nazi] jurist considered himself as an agent of law” (p. 156). So although the law that they practiced was used for substantively unjust and morally repugnant goals, the persistence of elements of formally rational law created elements of “order and predictability” within Nazi Germany (p. 10). These elements of order could—on occasion, and quite paradoxically—be used to protect individuals from the state’s worst abuses of power (pp. 34, 157, 226, 229ff.). For example, defense attorneys, wielding remnants of formal Rechtsstaat legality, were able to help clients avoid the terror of concentration camps by winning them longer prison sentences for ordinary crimes (p. 38). Meierhenrich argues that the existence of this countermovement of lawfulness within Nazi Germany is evidence that authoritarian states in general may sometimes be better characterized as dual natured and schizophrenic (p. 25ff). Depending on where one looks, such states can be simultaneously lawless and lawful. Accordingly, the author concludes, the rule of law in authoritarian states is not a black or white absent/present– it has a gray hue (pp. 34–36, 157–58).

Meierhenrich argues, however, that only an empirical, ethnographic study would reveal this dual state (p. 13). To perceive the schizophrenic character of the legal system of an authoritarian state like Nazi Germany, one would need to understand what “law” actually meant to its jurists: both how they conceived of it and how their beliefs structured their practice of the law.

Fortunately, Ernst Fraenkel was in position to do just such an ethnographic study. Fraenkel, a Jewish German jurist, practiced law within Nazi Germany alongside Nazi jurists until forced to flee in 1938. Recognizing its dual character (and heroically using remnants of the rule of law to resist Nazi rule where possible (pp. 40, 70, 242), Fraenkel published his observations in his 1941 The Dual State. Meierhenrich presents a compelling case for the reason that history has made a mistake in “all but forgetting” about Fraenkel (p. vii). To do so, he provides readers with the necessary historical, biographical, and theoretical elements to fully appreciate Fraenkel’s work.

The concept of the dual state is Fraenkel’s most important contribution to political and legal thought (p. 162). A dual state combines two opposed states: a normative and a prerogative state. The normative state is Meierhenrich’s eponymous “remnants of the Rechtsstaat.” Rechtsstaat is an essential concept of German political and legal theory, which overlaps somewhat with the English “rule of law.” The author devotes an entire chapter to elucidating the meaning and historical evolution of the concept Rechtsstaat from 1798 to 1933. It is one of the best concise analyses of the concept I have read. This chapter will be of interest to anyone seeking to better understand German legal history, constitutional theory, and liberal theory. Meierhenrich concludes his analysis by describing how, in the Weimar Republic, Rechtsstaat was defined in terms of positive jurisprudence. By then, Rechtsstaat defined a valid state and constitution only by whether the pursuit of political goals required adherence to formal rational legal procedures, which thereby limited when and how state power could be exercised legally (p. 81).

The prerogative state, on the other hand, is characterized by the state’s use of extralegal measures in the pursuit of political goals, reducing society to a condition of arbitrariness and violence (pp. 163, 183). (Tellingly, Meierhenrich explains, the prerogative state was a Massnahmenstaat, or “measure state,” in Fraenkel’s original German manuscript). Meierhenrich analyzes how the prerogative state undermines the normative state in three key ways: by transgressing into the domain of the formal rule of law regularly, by restricting the authority of the normative state outright (for example, by limiting judicial oversight of the police), and by infecting the normative state with its own deformalized legal culture (pp. 182–86). In these ways, the prerogative state gradually erodes the foundations of the normative state.

Two factors contributed to the dualism of the Nazi state. On the one hand, without technically rational law, some institutions like bureaucratic administration, private property, and private capitalism would be impossible to sustain (pp. 127–28, 190–93, 242ff.). On the other hand, by being dependent on these institutions, the Nazi state could not entirely eschew the formal rule of law (pp. 187–188).

Just how much does a dual authoritarian state depend on its normative state? At what point does the normative state become a barrier to advancing authoritarianism’s substantive political goals? Nazi jurists’ disagreements over the answer to this question was a second major factor for the existence of the dual state. A methodological debate began in 1933 over whether retaining the formal, technical rationality of the normative state better served Nazism’s heinous substantive goals (pp. 95–158). So far, the arguments and figures in this debate have been largely overlooked by histories of German public law (p. 147). Meierhenrich fills this lacuna by devoting nearly a quarter of his book to analyzing the major axes and key figures in the debate.

Fraenkel characterized the dual state as “a rational core within an irrational shell” (pp. 186ff.). However, the normative state clearly sits in the shadow of the prerogative state, operating only where the prerogative state allows (pp. 152, 187). Given the clear primacy of the political (p. 163), the dual state seems at times closer to an irrational core within a rational shell. In the case of Nazi Germany, defenders of the utility of the Rechtsstaat lost the debate around 1936, “precipitating the decline of the normative state” in practice (pp. 98, 140, 153, 155, 209, 215, 232). In 1939, like a parasite after its gestation period, an all-encompassing totalitarian Nazi state burst out of its host state—finishing off the remnants of the Weimar Rechtsstaat in the process (p. 239).

As long as remnants of the Rechtsstaat exist, however, Meierhenrich argues that they can limit the prerogative state (pp. 126, 232). They offer a “meaningful if heavily circumscribed way to contest the politics of authoritarian rule” (p. 246). In his final chapter, he makes a persuasive case that the dual-state typology provides a more sophisticated tool for understanding legal order in authoritarian states today (pp. 232–52). He also offers liberal democrats reason for hope: Although in cases like Nazi Germany, Vladimir Putin’s Russia, or Bashar al-Assad’s Syria the normative state succumbed or is succumbing to the prerogative state, the dualism of authoritarian legalism has also been a moment in the transition from authoritarianism to the liberal rule of law (p. 250). It can also be a tool of resistance, as it was in Nazi Germany.

Meierhenrich has written an admirable, multifaceted study of both the dual state and Ernst Fraenkel’s thought. There are, however, a few places I would have liked to see greater analysis. One is a more in-depth discussion of the substantive differences in the evolution of the dual state from Fraenkel’s 1937 “Das Dritte Reich as Doppelstaat” to his 1938 book manuscript Der Urdoppelstaat to his 1941 The Dual State (pp. 162–79). There may also be a missed opportunity here: Carl Schmitt clearly inspired Fraenkel’s thought in important ways—Fraenkel apparently even admired “Schmitt’s critique of liberalism” (pp. 64, 69). With his expertise on both thinkers, Meierhenrich could have examined their intellectual relationship more deeply.

Overall, Meierhenrich provides an excellent analysis of the meaning and significance of the dual state, first by extrapolating and contextualizing Fraenkel’s theory within the broader juridical debates of Weimar and Nazi Germany, and second by updating the dual state for contemporary discussions about authoritarianism, liberal constitutionalism, and the rule of law. This book will be of great interest to scholars working on legal and political thought.