In this episode Kasia Krzyżanowska talks to Douglas G. Morris, a legal historian and practicing criminal defense attorney with Federal Defenders of New York, about his newest book published by Cambridge University Press on Ernst Fraenkel. Fraenkel’s most famous work is “The Dual State, but he did not limit himself to scholarly work only. We discuss Fraenkel’s resistance that encompassed defending politically persecuted, as well as writing essays on the Nazi state from the legal and practical perspective.
Kasia Krzyżanowska: I must say that I was impressed with your book: you provided not only a broad legal analysis of “The Dual State,” but also managed to paint a social panorama of the German Bar under the Nazi regime. Just to remind our readers: Ernst Fraenkel was a Jewish lawyer mostly known for his theory of the dual state: we will talk about it later. However, the book by Douglas Morris does not focus solely on this renown piece of scholarship. He also explains the legal practice that Fraenkel carried on under the Nazi regime. In fact, as one scholar pointed out, “[o]ne profession that withstood the destruction of democracy in the 1930s and persisted as one of the remnants of the Rechtsstaat was lawyers.”
First of all, let me ask you what sparked your interest in Ernst Fraenkel? How come a contemporary active legal practitioner based in New York is writing a book on legal history about Fraenkel?
Douglas Morris: Well, I wear two hats, as a practicing criminal defence lawyer and as a legal historian. As a legal historian I was looking at Jewish lawyers in Nazi Germany and Ernst Fraenkel interested me more and more because of what an extraordinary lawyer he was, and what an extraordinary career he had during the Nazi era. He did three things that really caught my eye. First, he represented political defendants in courts during the Nazi era. I thought how extraordinarily it was that a Jewish and a Social-Democratic lawyer could represent defendants in courts during the Nazi era; how was it that he could engage in that representation and at times get acquittals; and how was it that during that time he could actually survive. I began then to look deeper and found the second dimension of Fraenkel. While he was engaging in the representation of his clients, he was also active in the early resistance against the Nazi regime. If fact, when we think about the resistance, we often have in mind the one during World War II. When many members of the elite were in fact supporting the Nazi regime, there were other people who actively opposed it at great risk. These often included Jews, Social Democrats, communists. These are, if you want to use the term, heroes, and these stories have not been told extensively, for example, the Kreisau circle.
Fraenkel was among those early resistors and he resisted by helping to distribute illegal pamphlets, by maintaining contacts with other resistors and getting information between and among resistors and abroad.
That made the question all the sharper about how this man was able to both represent clients, engage in the resistance, and still survive. The third characteristic of Fraenkel which drew my attention is his classic book “The Dual State”, which you refer to. It is the first full length analysis of the Nazi legal political system, and the first full length analysis that was penned within Nazi Germany itself. How did he come to write not only the first full length analysis, but in my judgment — and I think in the judgment of many scholars — one of the best ever analysis of the Nazis legal political system.
I put those three strands together. His representation of political defendants, his activity in the underground, and his writing of this major legal political treatise. And that is why I thought he was worthy of inquiry and that’s what I tried to do in my book.
One of the biggest assets of your book is the fact that you do not entirely focus on Freankel’s scholarly work nor on his whole biography, but only on a few – perhaps crucial for his life – years. Your timeframe is delineated on the one hand by the Reichstag Decree of 1933 and on the other: Fraenkel’s emigration to the US and the publication of his most famous book, “The Dual State”, in 1941. Perhaps we can now focus on the first dimension: could you briefly describe what it meant for Fraenkel, a Jewish lawyer and a social democrat, to practice his profession in Third Reich? It was remarkable that he decided not to flee and still defend the victims of political persecution, many times successfully.
Thank you for that question. During the First Republic, Fraenkel had been a leading young rising star in the Social Democratic movement. He had been a leading lawyer for the Metalworkers’ Union. When the Nazis took power, they destroyed it. But the former members of the Union started to come to him for legal assistance, so he gradually began to represent these people: those who were in need, who were prosecuted for having supported the Social Democratic Party, for engaging in what the Nazi regime characterized as treason. As a lawyer in that capacity, he went into court.
What distinguished him in one dimension was that he went into court. Most criminal defence lawyers who would take on a client charged with a political crime under the Nazi regime would not effectively represent them. They were too scared and too cowered. It was as if the defendant did not have a lawyer at all. Fraenkel continued to work as a lawyer and representative. He did that not just with tact, but with courage. He understood that he could not raise certain issues in courts. For example, some clients had said that the Nazis had ignited the Reichstag on February 28th 1933. Fraenkel had no doubt that they were right, but he knew that he could not say that in court. That would have been too dangerous to his clients, as well as to himself. However, he did represent clients with great courage in terms of the facts of the case, in terms, for example, of raising the issue of Gestapo torture and that confessions had been elicited through it. There were judges — especially in 1934 and 1935 — who gave weigh this argument. Fraenkel was sticking to the facts of the case even those were very dangerous facts to raise. He was often effective, although he was not able to get acquittals all the time. Fraenkel was representing people from a wide array of resistance groups. In fact, my conclusion is that there was nobody who had so much contact with so many members across the resistance, certainly not in Berlin, but also outside of Berlin, as Fraenkel did.
This raises another question: if he had so many contacts with so many members of the resistance, why wasn’t he arrested sooner? The answer I think is that
the Nazis took their own ideology seriously, and their own ideology didn’t take lawyers seriously.
As a result, they didn’t pay as much attention to lawyers such as Fraenkel and one or two other lawyers that he worked with. He worked closely with two non-Jewish resistance lawyers named Heinrich Reinefeld and Werner Wille. They were investigated by the Gestapo, but they never put the pieces together and never realize what these lawyers did. For example, one of the things that Fraenkel and his colleagues realized was in talking with clients (a conversation which is protected by the attorney client privilege), they would gather information about what was happening in other cases and use it. I don’t think it occurred to the Gestapo that these discussions and conversations were part of the resistance.
Perhaps you could explain how was it even possible that Fraenkel, a Jew, could still be actively engaged in his capacity as a lawyer? In other words, what was the legal basis that created this opportunity?
Thank you for that question. It’s a very important one. On April 7th 1933, the Nazis issued a decree with the aim of disbarring all Jewish lawyers — but there were exceptions. The two most important ones were for lawyers who had been admitted to the Bar before the beginning of World War I, and for lawyers who were veterans. As it turned out, 2/3 of Jewish lawyers in Nazi Germany, who were very prominent at the time, could continue in their profession to practice law. Fraenkel had fought in World War I as he had volunteered for the army. In fact, he had been severely injured at the end of the war, so he fell within that exception.
At the beginning of 1934, there was a second attempt to disbar Fraenkel by saying that he was an active Communist. This was possible because of the provisions of the law which allowed for disbarment. He argued, as other Social Democratic lawyers argued, that his beliefs were not communist. He argued that by representing clients who had been communists, he was essentially representing an individual defendant.
How did his practice of law compare with the practice of law of other Jewish lawyers?
There were similarities and there were differences. The similarity is that he was under continuous pressure and suspicion. Another similarity was his awareness that he was subject to humiliation. People treated Jewish lawyers in derogatory and humiliating ways. There were probably 18,000 or so Jewish lawyers practicing in Nazi Germany — all were finally, ultimately, completely disbarred in November 1938. By that time, the number diminished considerably, but there were still thousands of Jewish lawyers practicing law in Nazi Germany.
While the Nazi regime tried to isolate these lawyers (both economically and socially), and reduce their clientele effectively, it also tried to steer non-Jewish (so called Aryan people) clients away from Jewish lawyers. But the difference between Fraenkel and other Jewish lawyers was that, because he was an active Social Democrat, because he was representing members of the resistance, he actually had a thriving legal practice (certainly through 1934 and 1935). This was a source of clients that were generally not going to other Jewish lawyers.
Fraenkel was motivated and believed in his ideology and that was not just an ideology of resistance against the Nazi regime. It was surely that, but he was also a Marxist. Marxism really framed his understanding of events and how to take action in light of these events — that gave him a source of emotional stability. It’s hard to know exactly how someone like Fraenkel experienced the Nazi regime emotionally, although I believe he was actually quite traumatized, but he functioned extraordinarily well. I think that the effects of humiliation and the isolation were cushioned by his attempt to insert some kind of larger analytical framework into what was happening in the regime.
When Fraenkel realised in 1935 that he could not represent political clients, he started to sabotage the Nazi regime by writing five essays against Nazism. He did not shy away from writing about political issues, nor did he remain silent about anti-Semitism or capitalism. In an article on illegal work, he even acted more as an activist than a mere critic, advocating visible popular resistance, and calling for civil disobedience toward the state. To no avail, unfortunately. But it is remarkable that in these pieces of writing he was very much outspoken, acting like a social democrat. Would you identify any specific theme in these works?
That’s a very nice summary already. I appreciate that you know that Fraenkel’s work during the regime was fluid. He always represented clients, although the number of his clients reduced with time. He was always thinking about the regime and as you pointed out, began to write about it in a series of essays and finally between 1937 and 1938, his work “The Dual State” was conceived. One of the things that strikes me about the five essays that he wrote between ’34 and ’35 was his non-dogmatic approach.
He was continuously thinking about what was happening both for an analytical understanding, and for how he was going to represent clients. I think that that dimension really comes through in those five essays. He was willing to go out of his comfort zone. Fraenkel was a very analytical thinker — and very sharp! The essay that you mentioned — “The Point of Illegal Work” — was an essay which stands out for Fraenkel in some ways. It was really a call to action. It had a more deliberate and open political aim in the tone, and he was willing to adjust and change his thinking.
In this essay there’s a remarkable aspect. Here’s a lawyer, a man who has devoted his career to law. However,
seeing what is happening under this new regime, he wrote a pamphlet, which said we have to violate the law and disobey the law as we resist this tyrannical regime.
Now, that makes sense, but it’s a much harder point for a lawyer – especially a German lawyer – to get to that. Other Jewish lawyers were going in the opposite direction. They certainly opposed the regime: Jewish lawyers in Nazi Germany could not be happy with it, to put it mildly. However, they wanted to be even more punctilious in abiding by the law and using the law out of fear that if they were to not do that, they would jeopardize their situation.
But here is Fraenkel who’s writing an underground pamphlet saying we have to resist through various and different methods. This was also a remarkable essay because in this article, as with the other four that he wrote illegally, he was doing exactly what he was representing clients for doing, and for which they were prosecuted. He was still optimistic that the workers in Germany could rise up and that there was more opposition among the workers than the Nazi regime realized. He soon began to notice and realize, however painful it was for him to realize, that the Nazi regime in fact was effectively co-opting many of the workers and effectively crushing most of the small and scattered opposition that existed.
We can turn now to Fraenkel’s masterpiece, “The Dual state,” which foundations has been laid down in the time before his emigration (though with less developed concepts). It is also remarkable that he wrote an academic book on the legality of the Nazi regime in the middle of the war! As you mention, it is no wonder that the book was hardly noticed in the US when published in 1941. At several times in your book, you insist on a proper reading of the most famous conceptual contribution by Fraenkel, so that the normative and prerogative state are not opposing each other. It is indeed surprising to realise that many scholars fall into this trap and equate the normative state with the rule of law. Could you elaborate on the relation between those two concepts?
Fraenkel conceived that the dual state existed in Nazi Germany consisting of the prerogative state, which was the state of arbitrary power in which the authorities could act on their own whim or for whatever their political purposes might be embodied in the SS and the Nazi party. But also the court system continued to function. And that courts and the administrative system of the executive continued to function constituted the normative state. But the normative state in Fraenkel’s view was not of the rule of law. Rather, it was the traditional legal system carried over from the Weimar Republic that continued to function, but did not follow the previous principles.
Furthermore, this was not a static legal system – it was a legal system that was being nazified, that was moving more and more in the direction of Nazi policy and goals underpinned by Nazi ideology.
Fraenkel saw a dynamic interplay between the prerogative state and the normative state.
The prerogative state led the way and the normative state followed. Fraenkel worked out how the prerogative state exerted its influence and incorporated the normative state. The normative state therefore was part of the Nazi legal system and it was a legal-political system which was able to accomplish its goals through various methods. There were times when the Nazis used violence. They used violence when they came to power, is especially in March and April 1933, when they rounded up opposition activists and treated them brutally. They used violence, but they didn’t use violence alone. They also used the court system that they energetically reshaped in light of their own ideology and with the use of the prerogative state.
Immediately in March 1933 the Nazis created special courts, and then in April 1934 they established the infamous People’s Court. Between the special courts and the People’s Court there were Nazi courts. Political cases were moved to these courts and partly because of this movement Fraenkel was less and less able to represent his defendants in the last three years until 1938. I suggest that in fact we might think about this as a triple state with these courts as the kind of mediators between the normative state and the prerogative one. One of the critical aspects of Fraenkel’s analysis of the dual state was that the prerogative state had the ultimate decision-making authority. If the prerogative state made a decision, that decision would carry the normative state. The normative state never had the ability to override the prerogative state. Ultimately it is what I think Fraenkel referred to in legal terms as the prerogative state had jurisdiction over jurisdiction itself.
Describing his years in America, you state that Fraenkel admired American freedom with its protections against arbitrary rule. However, during his whole life he was attached to the notions of economic and social justice. So here my question would be: were his German ideals in tension with what he found in the capitalist America? And more broadly, how did he find himself in the US society and academia?
Fraenkel was very taken by the United States. He got out of Germany on September 20, 1938. He was warned that he was to be arrested that day, and he got to the United States. He went to the University of Chicago law school (one of the best law schools in the country) and he finished in three years . In two years during that time, he was improving his English as he was helping to translate works of Paul Tillich and he was reworking his manuscript of “The Dual State.” He was able to get the manuscript smuggled out in a French diplomatic pouch. He then reworked a draft and translated it into English, so that it was published in 1941 in English.
When he came to the United States, he was very impressed by the notions of freedom here, by the notions of individual rights as you appropriately and correctly said, continued to always believe in economic and social justice. It would be an interesting question which I can’t answer how he then integrated the ideas of individual rights with his earlier Marxism.
Fraenkel devoted the last several decades of his career to scholarship. He taught at the Free University of Berlin from the early ‘50s until he retired in the early 1970s. He helped to invent the field of political science in Germany, and he developed and taught his idea of pluralistic democracy. One of the characteristics of that idea was to import and to integrate ideas from American liberal democracy into post-war German. Democracy in his idea was a way of building up a liberal democratic system which would help to assure that the something like the Nazi regime would not succeed again. He was very taken by his experience in the United States, and it it broadly influenced his later theoretical thinking.
In collaboration with: Gaurav Mukherjee, Karen Culver