Chapter

“A Rational Core within an Irrational Shell”

Jens Meierhenrich

in The Remnants of the Rechtsstaat

Published in print March 2018 | ISBN: 9780198814412
Published online April 2018 | e-ISBN: 9780191851964 | DOI: http://dx.doi.org/10.1093/oso/9780198814412.003.0007
“A Rational Core within an Irrational Shell”

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This chapter turns from the making of The Dual State to its theoretical significance. Fraenkel’s principal argument had three parts. The first part comprised several counterintuitive propositions about the nature of the institutional design of the Nazi political order. Fraenkel argued that this structure consisted of two interacting states: a prerogative and a normative state. The second part of his argument revolved around the institutional effects of this bifurcated state. Fraenkel claimed that it facilitated not only violent domination but also allowed for an orderly transition to and consolidation of authoritarian rule. The third part of Fraenkel’s argument concerned the institutional origins of the dual state. I elaborate and critically evaluate each of these arguments in turn. Through an in-depth engagement with the strengths—and weaknesses—of The Dual State, I prepare the ground for the remainder of the analysis.

Keywords: The Dual State; formally rational law; Hans Kelsen; Douglass North; institutional theory; capitalism; National Socialism; Ernst Fraenkel; Daren Acemoglu; James Robinson

Chapter.  9982 words.  Illustrated.

Subjects: History of Law

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