Two Kinds of Dual States: Judicial Empowerment and Disempowerment in Authoritarian Politics

Under the pretense of a national emergency, the Reichstag Fire Decree drastically reshaped the Weimar constitutional order in 1933. The legally undefined jurisdiction of martial law conferred on the police unchecked powers to suppress any activities that were claimed to disrupt public order and safety. Until 1945, German courts, including the Prussian Supreme Court, interpreted the threat of Communism broadly in order to justify the denial of legal protections to political opponents by state officials on the grounds of necessity and expediency. Yet the legal order and judicial powers, particularly in non-political spheres, were not completely swept away in the civil society of Nazi Germany.Ernst Fraenkel employed a profound dual state model to illustrate the coexistence of the Normative State—rule-based lawfulness—and the Prerogative State—arbitrary lawlessness. Decades later, such coexistence between the two states is still maintained to some extent by authoritarian leaders, whether in democratic governments transitioning toward autocracy or in regimes ruled under the mandates of an excessively powerful party for a long period of time. This Article seeks to revisit the dual state model through an interdisciplinary and comparative lens by analyzing political maneuvers of courts and jurisdictions in two kinds of legal systems, which I will refer to as “Inherited” and “Rebuilt.” The findings should assist comparativists and public law researchers in advancing a comprehensive understanding of the judiciary’s role in authoritarian governance and the interplay between law and politics in the contemporary world.