In the late 1930s, Ernst Fraenkel, a German-Jewish lawyer, developed a theory that has surprising resonance today. In Fraenkel’s theory, called the Dual State, a totalitarian society is propped up by two interlocking halves: One half enshrines and enforces legal order, while the other arbitrarily exercises power free of legal constraint. The first half provides the veneer of legality necessary for the second to operate without producing overt rebellion, while the second allows the government to achieve its goals, notwithstanding a superficial commitment to legality.
The United States is not a totalitarian society, but Fraenkel’s theory nonetheless sheds light on recent tensions between the rule of law—the oft-quoted notion that the U.S. has a “government of laws, not of man”—and the rule of “technically legal.”
First, the country continues to roil over grand-jury decisions not to indict police officers in the deaths of Michael Brown and Eric Garner. The use of a grand jury—a quintessentially legal process used in thousands of cases—would seem to help insulate the outcomes from criticism. Indeed, grand juries historically served as independent bodies. Proceedings were secret to ensure freedom from coercion.