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The Remnants of the RechtsstaatAn Ethnography of Nazi Law$
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Jens Meierhenrich

Print publication date: 2018

Print ISBN-13: 9780198814412

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198814412.001.0001

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“A Rational Core within an Irrational Shell”

“A Rational Core within an Irrational Shell”

An Institutional Theory of Dictatorship

(p.181) 7 “A Rational Core within an Irrational Shell”
The Remnants of the Rechtsstaat

Jens Meierhenrich

Oxford University Press

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

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