The Dual State

By Ernst Fraenkel
ONE of the wittier anecdotes in circulation in Moscow is that the leading principle of Soviet jurisprudence is not habeas corpus, but habeas cadaver. This observation would hold good, in greater or less degree, for all contemporary dictatorships. Yet large communities cannot live altogether without fixed legal norms. So in Germany, in Italy, in the Soviet Union, what the author calls ‘the dual state’ has grown up. Certain civil and criminal cases are judged according to law and precedent; others are within the province of the arbitrary and all-powerful political police organizations. Mr. Fraenkel sees in National Socialist Germany a ‘prerogative state’ of sheer arbitrariness and a ‘normative state’ where legal codes still possess significance. His analysis is thorough and scholarly and based on extensive research. While the book is predominantly legal in character, it also contains an interesting thesis about the economic background of the Reich. It is the author’s belief that the German capitalists bartered liberty for economic security, and he compares their attitude with that of the Prussian nobles of the seventeenth century who were willing to acknowledge the absolute rule of the Great Elector in exchange for absolute authority over their serfs.