An update to Frankel’s theory of duality may be needed

Dictatorship, Dual State, Ernest Frankel, Nazi Germany, Communists, Liberals,

In Dual State: Contribution to DictatorshipErnest Frankel developed a theory based on his experience as a lawyer in the Berlin Court of Appeals in Nazi Germany between 1931 and 1938. Between 1933 and 1938. He witnessed the decline of the German legal system. Approval of the Reichstag Fire Decree and the Enablement Act, which gave the “special state” powers used to override the “code of conduct” because ordinary rights were denied to those whom the state defined as its enemies as communists. Liberals, conservatives and even Jews. The personal status of the next person is limited by Nuremberg laws. This happened after they remained a limited sphere in the country‚Äôs economy. By 1936, the Reich Supreme Court had declared them “legally dead”.

The main difference between dictatorships and democracies is that the latter are simply enforcing the rules of law. In a democracy, everyone is equal in the eyes of the law. The law is codified and not arbitrary, it applies equally in every case, without exception, and is the mandate of the administration. It is usually in the form of a constitution, with democratically elected legislatures complying with the laws. There are institutions on hand to defend the laws from the state, especially from the judiciary.

It is easy to separate dictatorship from democracies in the 20th century. The latter constitutes constitutions based on enlightenment principles such as individual liberty, equality before the law, humanism, secularism as expressed by reason and religious universality. Periodic elections are held on the basis of a universal franchise, and laws made in accordance with the Constitution are resolved with irregularities and disputes through an independent judiciary. The dictators overthrew such constitutions and imposed harsh laws without the consent of the public will, concentrating power in their own hands. Many right and left dictatorships, including the former Soviet Union, have used such means. However, dictators can be elected through the ballot box, after which they can be suspended, revoked or subject to their will. The Emergency of the 1970s in India had some of its features, although the seizure of power by Adolf Hitler is a great example; Weimar never intended to abide by the Constitution.

Does that mean that there is no place for the rule of law in a dictatorship?

It is very difficult to maintain a community or productive process where there is no consensus and trust among stakeholders on the potential attendance of results. Unless there are any rules for private and unfinished property, freedom of entrepreneurship, sanctity of contracts, unfair competition, labor employment, etc., it is impossible to run the capitalist system or maintain social order in such circumstances. Laws brought by dictators of the 20th century reduced individual freedom in the political arena. Laws relating to civil society were largely enforced, with arbitrary exceptions in some cases, in which the State exercised specially acquired powers.

Frankel’s dictatorship and dualism resonate in modern times. According to him, a dual state exists under dictatorial rule, which includes both a code of conduct and a privilege. Germany has one of the best legal systems in Europe, and continues to be a normal state in day-to-day transactions even under Nazi rule. On the other hand, “a system of government that does not check unlimited arbitrariness and violence through any legal guarantees”. Both are simultaneous.

In the 21st century, it has become technically difficult for democracies to claim democratic dictatorships. After learning the lesson of the 20th century that overthrowing constitutional and legal structures means that the regime loses legitimacy, with subsequent proven power and short-term proof, subsequent constitutions, laws, broader institutions, the universal adult franchise and the judiciary. Instead, even though they secretly undermine the electoral process, they use popular command and their cult status to reduce their power. Another political theorist, Carl Schmidt, described them as “sovereign dictators” in his 1921 classic Dictator. Since the state and its affiliated pressure groups can bend companies, even if they do not always get their way, the straightforward application of Frankel’s theory is short-lived, as there are no exclusive right provisions.

Modern dictatorship strengthens its grip on powers not by special laws, but by increasing their executive power under existing laws to seize legal and other civil society institutions. They appoint servants to key positions and use legal entities to enforce the will of the particular state through them. Normal condition usually works in most cases. But by controlling the outcome of certain cases, the particular state seizes all state power. Democratic dictatorship has expanded in world democracies from Latin America to Eastern Europe and Asia, with cult-based rightist parties dominating the US and Western Europe. It remains to be seen whether they will prove to be more durable than the dictatorial regimes of the 20th century.

Alok Sheel is RBI Chair Professor in Macroeconomics at ICRIER

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