In The Remnants of the Rechtsstaat: An Ethnography of Nazi Law, Jens Meierhenrich challenges the perception of Nazism as an absence or perversion of legal oversight, instead outlining how jurists and practitioners mobilised and transformed key concepts within German law to support the actions of the Nazi regime. Focusing particularly on the figure of Ernst Fraenkel and his formative work The Dual State – a critical ethnography of negotiating and challenging the changing terrain of law under Nazism – this is a valuable conceptual history of the German Rechtsstaat and a testament to the courage of its guardians in the 1930s, finds Joshua Smeltzer

Smeltzer, Joshua

LSE Research Online

Book	Review:	The	Remnants	of	the	Rechtsstaat:	AnEthnography	of	Nazi	Law	by	Jens	MeierhenrichIn	The	Remnants	of	the	Rechtsstaat:	An	Ethnography	of	Nazi	Law,	Jens	Meierhenrich	challenges	theperception	of	Nazism	as	an	absence	or	perversion	of	legal	oversight,	instead	outlining	how	jurists	and	practitionersmobilised	and	transformed	key	concepts	within	German	law	to	support	the	actions	of	the	Nazi	regime.	Focusingparticularly	on	the	figure	of	Ernst	Fraenkel	and	his	formative	work	The	Dual	State	–	a	critical	ethnography	ofnegotiating	and	challenging	the	changing	terrain	of	law	under	Nazism	–	this	is	a	valuable	conceptual	history	of	theGerman	Rechtsstaat	and	a	testament	to	the	courage	of	its	guardians	in	the	1930s,	finds	Joshua	Smeltzer.	The	Remnants	of	the	Rechtsstaat:	An	Ethnography	of	Nazi	Law.	Jens	Meierhenrich.	Oxford	University	Press.2018.Find	this	book:	The	term	‘Nazi	law’	seems	to	contain	within	it	a	deep	contradiction.	Under	the	Naziregime,	arbitrary	arrests	were	carried	out	under	the	veil	of	Schutzhaft,	or	‘protectivecustody’.	The	infamous	Volksgerichtshof,	or	People’s	Court,	was	little	more	than	afarce,	doling	out	death	sentences	after	show	trials.	The	concentration	camp	systemoperated	without	any	pretence	of	legal	oversight.	Indeed,	the	whole	period	of	NationalSocialist	tyranny	appears	as	a	perversion	of	law,	the	diametric	opposite	of	the	GermanRechtsstaat,	or	state	governed	by	law	and	legal	procedures.Jens	Meierhenrich’s	The	Remnants	of	the	Rechtsstaat:	An	Ethnography	of	Nazi	Lawpushes	back	on	precisely	this	characterisation	of	lawlessness.	For	Meierhenrich,	Nazilaw	was	an	observable	‘fact	of	everyday	life’,	one	complete	with	jurists	andpractitioners,	with	contested	legal	debates	and	codifications	of	new	laws	(3).	To	simplydismiss	Nazi	law	as	an	oxymoron	means	foreclosing	the	possibility	of	understandinghow	National	Socialism	mobilised	the	key	concepts	of	German	law	to	support	itsactions	and	shift	the	standards	of	the	profession.The	second	chapter	of	the	book,	titled	‘Behemoth	and	Beyond’,	is	devoted	to	dethroning	the	hegemonic	position	ofGerman	émigré	Franz	Neumann’s	Behemoth:	The	Structure	and	Practice	of	National	Socialism	in	the	historiographyof	National	Socialist	law.	Published	originally	in	1942	with	an	expanded	edition	in	1944,	the	title	of	the	book,Behemoth,	already	provides	an	argument	about	the	state	of	law	under	National	Socialism:	just	as	Thomas	Hobbeshad	borrowed	the	religious	symbolism	of	the	Behemoth	to	describe	the	lawlessness	of	the	English	Civil	War,	so	toodid	Neumann	insist	that	National	Socialism	was	characterised	by	the	same.	As	Meierhenrich	argues,	this	was	largelydue	to	Neumann	viewing	‘the	law	of	the	Rechtsstaat	[as]	a	discrete	variable:	it	could	only	take	on	two	values’	(33).Either	Nazi	Germany	was	a	Rechtsstaat	or	it	was	not,	and	Neumann	came	down	squarely	on	the	latter	position.Against	Neumann’s	interpretation,	Meierhenrich	urges	a	more	complicated	picture	of	Nazi	law:although	in	Nazi	Germany	the	reign	of	the	Rechtsstaat	as	such	was	over,	some	of	the	norms	andinstitutions	associated	with	it	survived,	if	in	heavily	circumscribed	form.	They	continued	to	matter,structuring	politics	and	society	on	the	margins	of	dictatorship	(39).LSE Review of Books: Book Review: The Remnants of the Rechtsstaat: An Ethnography of Nazi Law by Jens Meierhenrich Page 1 of 3		Date originally posted: 2018-07-25Permalink: http://blogs.lse.ac.uk/lsereviewofbooks/2018/07/25/book-review-the-remnants-of-the-rechtsstaat-an-ethnography-of-nazi-law-by-jens-meierhenrich/Blog homepage: http://blogs.lse.ac.uk/lsereviewofbooks/Image	Credit:	Ruin	of	the	‘Volksgerichtshofes‘	(People’s	Courts),	Berlin	(Bundesarchiv,	B	145	Bild-P054489/Carl	Weinrother	CC-BY-SA	3.0)Enter	Meierhenrich’s	protagonist,	Ernst	Fraenkel,	a	Jewish-German	lawyer	and	social	democrat	who	remained	inGermany	after	Hitler’s	seizure	of	power	until	he	was	forced	to	flee	in	1938.	Formerly	Neumann’s	law	partner,Fraenkel	began	writing	his	account	of	Nazi	law,	published	in	English	as	The	Dual	State,	while	still	working	as	alawyer.	As	Meierhenrich	points	out,	The	Dual	State	was	‘an	ethnography	of	law	crafted	in	the	most	forbidding	ofcircumstances	[…]	the	first	comprehensive,	institutional	analysis	of	the	rise	and	nature	of	National	Socialism,	and	itwas	the	only	such	analysis	written	from	within	Germany’	(20).	This	contemporaneous	account	is	the	product	of	first-hand	experiences	of	negotiating	the	changing	terrain	of	law	under	National	Socialism.It	is	ultimately	this	first-hand	experience	that	allows	Fraenkel	to	see	the	outline	of	‘the	dual	state’.	As	Fraenkelexplained	in	the	introduction	to	his	work:based	on	the	insights	into	the	functioning	of	the	Hitler	regime	that	I	gleaned	from	my	legal	practice,	Ibelieve	to	have	found	a	key	to	understanding	the	National	Socialist	system	of	rule	in	the	duality	orconcurrent	existence	of	a	“normative	state”	that	generally	respects	its	own	laws,	and	a	“prerogative	state”that	violates	the	very	same	laws	(182).The	prerogative	state	exercised	arbitrary	power	with	little	to	no	constraints	through	the	Gestapo	or	the	NationalSocialist	party	apparatus	(183);	at	the	same	time,	however,	lower	courts	and	administrative	bureaucracies	continuedto	follow	their	normal	procedure.	This	leads	to	perhaps	the	most	haunting	and	yet	absurd	anecdote	of	the	book.	AsFraenkel	recounts:[This	is]	a	country	in	which	it	is	possible	that	a	concentration	camp	inmate	can	successfully	file	his	taxcomplaints.	The	prerogative	state	incarcerated	him,	the	technical,	normative	state	reviews	his	taxcomplaint	as	if	nothing	had	happened,	as	if	we	all	still	lived	in	a	Rechtsstaat	(189).Two	chapters	of	the	book	are	devoted	to	constructing	a	rich	conceptual	history	of	the	Rechtsstaat	in	Germanjurisprudence	and	form	the	intellectual	background	to	Fraenkel’s	work.	The	first	chapter	covers	its	origin	in	the	workof	Johann	Wilhelm	Placidus	in	1798,	its	popularisation	through	Robert	von	Mohl	in	the	period	before	the	revolutionaryevents	of	1848,	all	the	way	through	to	debates	on	the	nature	of	the	Rechtsstaat	in	the	Weimar	Republic.	This	broadhistory	emphasises	both	the	pluralism	of	German	legal	thought	and	jurisprudence,	but	also	underlines	that	theRechtsstaat	was	an	‘essentially	contested	concept’,	with	each	jurist	attempting	to	imbue	it	with	connotations	fromtheir	own	jurisprudence	(92).LSE Review of Books: Book Review: The Remnants of the Rechtsstaat: An Ethnography of Nazi Law by Jens Meierhenrich Page 2 of 3		Date originally posted: 2018-07-25Permalink: http://blogs.lse.ac.uk/lsereviewofbooks/2018/07/25/book-review-the-remnants-of-the-rechtsstaat-an-ethnography-of-nazi-law-by-jens-meierhenrich/Blog homepage: http://blogs.lse.ac.uk/lsereviewofbooks/In	the	following	chapter,	Meierhenrich	extends	his	conceptual	history	of	the	Rechtsstaat	into	the	beginning	of	theNational	Socialist	dictatorship.	Between	1933	and	1936,	Nazi	jurists	debated	whether	the	Rechtsstaat	could	beassimilated	into	Nazi	jurisprudence.	On	the	one	hand,	jurists	such	as	Otto	Koellreutter	argued	for	a	racialised	versionof	the	Rechtsstaat,	in	which	‘law’s	constitutive	and	constraining	force	derived	from	the	völkisch	idea	of	law	and	nolonger	from	the	“rigid	forms	of	statutory	rule”’	(114).	In	the	opposing	camp,	jurists	such	as	Carl	Schmitt	argued	thatthe	concept	of	the	Rechtsstaat	had	to	be	removed	from	the	legal	vocabulary	of	National	Socialist	jurisprudence,	as	‘itwas	a	manifestation	of	degenerate	law’	(141):	an	inherently	liberal	and	subversive	concept	to	National	Socialisttyranny.	More	than	merely	a	turf	war	between	competing	academic	camps,	the	debate	over	the	Rechtsstaat	‘pointsto	a	neglected	social	mechanism	in	the	making	of	the	Nazi	dictatorship:	the	reconstitution	of	legal	norms’	(155).While	these	debates	help	to	situate	Fraenkel’s	The	Dual	State	within	its	broader	intellectual	background,	thechapters	are	equally	valuable	when	taken	on	their	own	as	conceptual	histories	of	the	German	Rechtsstaat.Ultimately,	Meierhenrich’s	book	is	‘an	effort	to	stem	the	tide	of	forgetting	the	guardians	of	the	Rechtsstaat	in	the1930s,	these	defenders	of	light	in	a	dark	time’	(24).	Ernst	Fraenkel	repeatedly	risked	his	life	for	that	end,	frompreparing	the	manuscript	of	The	Dual	State	while	still	in	Nazi	Germany	to	publishing	pseudonymous	critiques	ofNational	Socialism	in	foreign	newspapers	(70-71).	By	excavating	the	intellectual	context	and	publication	history	ofThe	Dual	State,	Meierhenrich’s	monograph	rescues	Fraenkel	from	the	shadow	of	his	contemporaries.	The	sheercourage	of	academics	such	as	Fraenkel	is	worth	remembering,	as	are	their	scholarly	contributions.Joshua	Smeltzer	is	a	doctoral	student	at	the	University	of	Cambridge	pursuing	a	PhD	in	Politics	and	InternationalStudies,	with	a	focus	on	twentieth-century	German	political	thought.	Read	more	by	Joshua	Smeltzer.Note:	This	review	gives	the	views	of	the	author,	and	not	the	position	of	the	LSE	Review	of	Books	blog,	or	of	theLondon	School	of	Economics.	LSE Review of Books: Book Review: The Remnants of the Rechtsstaat: An Ethnography of Nazi Law by Jens Meierhenrich Page 3 of 3		Date originally posted: 2018-07-25Permalink: http://blogs.lse.ac.uk/lsereviewofbooks/2018/07/25/book-review-the-remnants-of-the-rechtsstaat-an-ethnography-of-nazi-law-by-jens-meierhenrich/Blog homepage: http://blogs.lse.ac.uk/lsereviewofbooks/

Book review: the remnants of the Rechtsstaat: an ethnography of Nazi law by Jens Meierhenrich

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Book review: the remnants of the Rechtsstaat: an ethnography of Nazi law by Jens Meierhenrich

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