Abstract

ABSTRACT Ernst Fraenkel’s seminal study about Nazi law, in which he described the co-existence of a ‘normative state’ and a ‘prerogative state’ as principles of government, is to be rediscovered in the new age of the prerogative. Through a critical reading of The Dual State and other important texts by Fraenkel, this article seeks to contribute to the contemporary debate on regime types and governmental power in three regards: first, by clarifying Fraenkel’s concept of and perspective on law; second, by discussing the methodological demands for the beneficial application of the dual state concept; and, third, by showing the usefulness of such an application, even beyond the field of authoritarian states in the narrower sense. Law-eroding prerogative developments cannot only be witnessed in hybrid regimes, but also in democratic states, which resort to reflections and practices of an ‘enemy criminal law’, and in the European Union’s recent crisis politics.