Thread by @satl_jlu

Part II: Between 1934 and 1937 Fraenkel wrote essays that were published in the exile journal “Sozialistische Warte” of the underground group #ISK. In 1936 he started working on his “The Dual State” manuscript, where he critically analyzed the national socialist regime. (22/38)

In this book, Fraenkel, unpacks decisions of the #German courts and the development of #judicial practice, to develop his central theory that the legal-political system of National Socialist Germany consisted of a “prerogative state” and a “normative state”. (23/38)

The prerogative state was the realm of arbitrariness and official power, against which citizens enjoyed no legal protection (represented by the Gestapo and the SS). The normative state protected the legal order as it is expressed in legislations and court decisions. (24/38)

However, the normative state did not represent the rule of law. In the “prerogative state" decisions are made according to criteria of political opportunism, in order to secure the regime's specific goals - such as the persecution of the Jews. (25/38)

After Jewish lawyers were completely banned from practicing by September 1938, Fraenkel was determined to leave Germany. He first fled to London and from there, together with his wife, to his sister, Marta, in New York. (26/38)

After the rejection of Fraenkel’s application to the New School for Social Research in New York, he began studying law at the Law School of the University of Chicago in 1939. After graduation, he worked as a lawyer in a firm specializing in civil law. (27/38)

In 1941 the Fraenkel’s moved to NY, where he initially considered working with Horkheimer and Adorno. But their approaches were too different. While the positions of the New School seemed more theoretical, Fraenkel always approached positions empirically and concretely.(28/38)

In 1942, Franz Neumann's famous work "Behemoth" was published. Neumann made clear that he did not agree with Fraenkel’s central theory in the “Dual State”. Neumann did not see the Nazi system as a state organization and believed that the state had disintegrated. (29/38)

After several posts at universities, Fraenkel took a job in 1944 at a government agency in Washington that dealt with the question of Germany's post-defeat reconstruction. There, he noticed a fundamental change in his personality of legal approach. (30/38)

He had become more cautious overall and found that he thought less dogmatically. He could imagine a democratic state in Germany in the future. After the capitulation of 1945, a return to Germany was out of the question for Fraenkel. (31/38)

After the dissolution of his agency, Fraenkel went to work for independent South Korea as a legal expert. There, he was to record expert opinions on the resolution of legal disputes. Among other things, he helped hold a free election in Southern Korea. (32/38)

In 1951, Fraenkel returned to Berlin with his wife. There, he worked at the German School of Politics, which became the Otto Suhr Institute of the FU-Berlin later. In his teaching, he addressed the formation of the democratic principles of the American Constitution. (33/38)

Back in Germany, Fraenkel found it difficult to deal with the past. Instead of dealing with the reasons for the emergence of totalitarian states, he preferred to devote himself to positive models of states. In this context, he wrote: (34/38)

Fraenkel is considered to be one of the co-founders of the discipline of political science after World War II in Germany. In his work after World War II, he dealt intensively with the theory of pluralism: (35/38)

When the '68 movement questioned the structures of the university and he was confronted in person with accusations, he felt personally attacked and perceived the methods of the '68ers as totalitarian. He replied: (36/38)

In the last years of his life, he felt isolated. The appreciation and argumentative democratic debate he had hoped for failed to materialize. He was awarded with the "Großen Verdienstkreuz" and the "Ernst Reuter Plakette". Ernst Fraenkel died on March 28, 1975. (37/38)

Sources: Simone Ludwig-Winters, Ernst Fraenkel: Ein politisches Leben, 2009; Douglas G. Morris, Legal sabotage: Ernst Fraenkel in Hitler's Germany, 2020. (38/38)