Dual state (model)

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The dual state is a model in which the functioning of a state is divided into a normative state, which operates according to set rules and regulations, and a prerogative state, "which exercises unlimited arbitrariness and violence unchecked by any legal guarantees". [1] It was invented by Ernst Fraenkel to describe the functioning of the Nazi state especially law in Nazi Germany. Although it was originally intended as an analysis of authoritarian states, some elements of the prerogative state are present in democracies. [2] [3] [4] The model has also been applied to other states such as Israel, [5] [6] [7] [8] the United States, [9] [10] South Africa, [11] Fascist Italy, [12] twenty-first century China [13] [14] and Russia. [15] [16] [17]

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<span class="mw-page-title-main">Government</span> System or group of people governing an organized community, often a state

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<span class="mw-page-title-main">Totalitarianism</span> Extreme form of authoritarianism

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<span class="mw-page-title-main">Democratization</span> Society becoming more democratic

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<span class="mw-page-title-main">Legitimacy (political)</span> Right and acceptance of an authority

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Ernst Fraenkel was a German-Jewish lawyer and political scientist. Prior to World War II, Fraenkel served as a criminal defense lawyer for Jews who were targeted by the Nazi regime. After the war, he authored the book The Dual State on the political structure of the Nazi regime and subsequently became one of the founding fathers of German political science.

<span class="mw-page-title-main">Richard Sakwa</span> British political scientist

Richard Sakwa is a British political scientist and a former professor of Russian and European politics at the University of Kent, a senior research fellow at the National Research University-Higher School of Economics in Moscow, and an honorary professor in the Faculty of Political Science at Moscow State University. He has written books about Russian, Central and Eastern European communist and post-communist politics.

Power sharing is a practice in conflict resolution where multiple groups distribute political, military, or economic power among themselves according to agreed rules. It can refer to any formal framework or informal pact that regulates the distribution of power between divided communities. Since the end of the Cold War, power-sharing systems have become increasingly commonplace in negotiating settlements for armed conflict. Two common theoretical approaches to power sharing are consociationalism and centripetalism.

Authoritarianism is a political system characterized by the rejection of democracy and political plurality. It involves the use of strong central power to preserve the political status quo, and reductions in the rule of law, separation of powers, and democratic voting. Political scientists have created many typologies describing variations of authoritarian forms of government. Authoritarian regimes may be either autocratic or oligarchic and may be based upon the rule of a party or the military. States that have a blurred boundary between democracy and authoritarianism have some times been characterized as "hybrid democracies", "hybrid regimes" or "competitive authoritarian" states.

<span class="mw-page-title-main">Coup d'état</span> Deposition of a government

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A hybrid regime is a type of political system often created as a result of an incomplete democratic transition from an authoritarian regime to a democratic one. Hybrid regimes are categorized as having a combination of autocratic features with democratic ones and can simultaneously hold political repressions and regular elections. Hybrid regimes are commonly found in developing countries with abundant natural resources such as petro-states. Although these regimes experience civil unrest, they may be relatively stable and tenacious for decades at a time. There has been a rise in hybrid regimes since the end of the Cold War.

<span class="mw-page-title-main">Democratic backsliding</span> National decline in democracy

Democratic backsliding is a process of regime change toward autocracy that makes the exercise of political power by the public more arbitrary and repressive. This process typically restricts the space for public contestation and political participation in the process of government selection. Democratic decline involves the weakening of democratic institutions, such as the peaceful transition of power or free and fair elections, or the violation of individual rights that underpin democracies, especially freedom of expression. Democratic backsliding is the opposite of democratization.

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<span class="mw-page-title-main">Hugo Krabbe</span> Dutch legal philosopher (1857–1936)

Hugo Krabbe was a Dutch legal philosopher and writer on public law. Known for his contributions to the theory of sovereignty and the state, he is regarded as a precursor of Hans Kelsen. Also Krabbe identified the state with the law and argued that state law and international law are parts of a single normative system, but contrary to Kelsen he conceived the identity between state and law as the outcome of an evolutionary process. Krabbe maintained that the binding force of the law is founded on the "legal consciousness" of mankind: a normative feeling inherent to human psychology. His work is expressive of the progressive and cosmopolitan ideals of interwar internationalism, and his notion of "sovereignty of law" stirred up much controversy in the legal scholarship of the time.

<span class="mw-page-title-main">Law on imposition and enforcement of the death penalty</span>

Law on imposition and enforcement of the death penalty was a German law enacted by the Nazi regime on 29 March 1933, that imposed the death penalty for certain crimes such as arson and high treason, that had formerly meant whole life imprisonment. The name derives from the fact that the law formed the legal basis for the imposition of the death penalty on Marinus van der Lubbe, who had been caught in the arson attack on the Reichstag on 28 February 1933.

<span class="mw-page-title-main">Democratic backsliding in the United States</span> Periods of democratic decline in the U.S.

Democratic backsliding in the United States has been identified as a trend at the state and national levels in various indices and analyses. Democratic backsliding is "a process of regime change towards autocracy that makes the exercise of political power more arbitrary and repressive and that restricts the space for public contestation and political participation in the process of government selection".

References

  1. Fraenkel 2018, p. 17.
  2. Markovits, Inga (2006). "Transitions to Constitutional Democracies: The German Democratic Republic". The Annals of the American Academy of Political and Social Science. 603 (1): 140–154. doi:10.1177/0002716205282408. S2CID   154981020.
  3. Suntrup, Jan Christoph (2020). "Between prerogative power and legality – reading Ernst Fraenkel's The Dual State as an analytical tool for present authoritarian rule". Jurisprudence. 11 (3): 335–359. doi:10.1080/20403313.2020.1734337. S2CID   216447975.
  4. Schotel, Bas (2021). "Administrative Law as a Dual State. Authoritarian Elements of Administrative Law". Hague Journal on the Rule of Law. 13 (1): 195–222. doi: 10.1007/s40803-021-00156-4 . ISSN   1876-4053. S2CID   234754461.
  5. Ben-Natan, Smadar (2021). "The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond". Punishment & Society. 23 (5): 741–763. doi:10.1177/14624745211040311.
  6. Mackert, Jürgen (2021). "Introduction: A 'master-race democracy': Myths and lies of Western liberal civilization". The Condition of Democracy. Routledge. ISBN   978-1-003-15838-7.
  7. Dayan, Hilla (2022). "Israel/Palestine: Authoritarian Practices in the Context of a Dual State Crisis". New Authoritarian Practices in the Middle East and North Africa. Edinburgh University Press. pp. 131–151. ISBN   978-1-4744-8943-0.
  8. Mehozay, Yoav (2016). Between the Rule of Law and States of Emergency: The Fluid Jurisprudence of the Israeli Regime. State University of New York Press. ISBN   978-1-4384-6340-7.
  9. Tushnet, Mark (2022). "The Dual State in the United States: The Case of Lynching and Legal Lynchings". The Law & Ethics of Human Rights. 16 (1): 41–59. doi:10.1515/lehr-2022-2003. ISSN   1938-2545. S2CID   250360161.
  10. Saito, Natsu Taylor (2007). From Chinese Exclusion to Guantánamo Bay: Plenary Power and the Prerogative State. University Press of Colorado. ISBN   978-0-87081-851-6.
  11. Meierhenrich, Jens (2008). The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000. Cambridge University Press. ISBN   978-1-139-47517-4.
  12. Costa, Pietro (2022). "The Fascist Regime between 'Law' and 'Politics': A Case of 'Dual State'?". Giornale di Storia Costituzionale. 43: 93.
  13. Pils, Eva (2014). China's Human Rights Lawyers: Advocacy and Resistance. Routledge. ISBN   978-1-134-45068-8.
  14. Fu, Hualing (2022). "Between the Prerogative and the Normative States: The Evolving Power to Detain in China's Political-Legal System". The Law & Ethics of Human Rights. 16 (1): 61–97. doi:10.1515/lehr-2022-2006. ISSN   1938-2545. S2CID   250360175.
  15. Sakwa, Richard (2010). "The revenge of the Caucasus: Chechenization and the dual state in Russia". Nationalities Papers. 38 (5): 601–622. doi:10.1080/00905992.2010.498468. S2CID   154320723.
  16. Sakwa, Richard (2010). The Crisis of Russian Democracy: The Dual State, Factionalism and the Medvedev Succession. Cambridge University Press. ISBN   978-0-521-76842-9.
  17. Sakwa, Richard (2010). "The Dual State in Russia". Post-Soviet Affairs. 26 (3): 185–206. doi:10.2747/1060-586X.26.3.185. S2CID   144025460.

Further reading

See also