Review

Reviewed Work(s): The Dual State: A Contribution to the Theory of Dictatorship. by Ernst
Fraenkel, E. A. Shils, Edith Lowenstein and Klaus Knorr
Review by: Otto Kirchheimer
Source: Political Science Quarterly, Vol. 56, No. 3 (Sep., 1941), pp. 434-436
Published by: The Academy of Political Science
Stable URL: https://www.jstor.org/stable/2143677
Accessed: 23-10-2019 13:21 UTC

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 No. 3] REVIEWS 435

In order to prove his thesis -that the capitalist system is guaranteed

by the organs of the " normative" state Fraenkel relies on several
specific court decisions without, however, inquiring how far the iso-
lated decisions he invokes really stabilize economic and social rela-
tionships and how far they are only minor stages in economic battles
decided elsewhere and with other weapons. For example, he quotes
a decision of the Appellate Court in Koln, denying an injunction to
an association of oil dealers, who had fixed gas prices with the per-
mission of the Chamber of Commerce (Handels und Industniekammer
has unfortunately been translated as " Board of Trade ") and of the
Trustee of Labor (p. 79). Nothing indicates more clearly that
monopoly-capitalism does not rely for its operation on a calculable
system of preexistent norms, set into motion by a judicial bureauc-
racy, than the way in which price-fixing is handled in contemporary
Germany. Price-fixing works by force of the less gentle methods
of pressure and counter-pressure on competitor and administrative
bureaucracy in which a certain measure of rationality, so to speak, is
attained by the government's completely abandoning the small com-
petitor to his mighty trust rival, all under the veil of industrial self-
government. In fact, the price-fixing of the cartel or trust becomes
mandatory for the outsider as a result of the domination which the
cartel exercises on the " economic group ", whose intercession and
good will the small competitor needs when he wants to get his modest
quota of raw materials or, in more recent times, his indemnity for
the enforced war-idleness of his shop. His only comeback seems to
lie in the nuisance value inherent in an appeal to the price-fixing
authority. How slim the chances are for judicial intervention in
favor of upholding competitive principles, Fraenkel could have real-
ized from the decisions of the Reichswirtschaftsgericht. These show
how the gradual entrenchment of the Third Reich led to abandoning
the idea of " protecting the livelihood of the individual " from re-
strictive measures and how it was replaced by the so-called "pro-
motion of a general interest " as reached by such trade restrictions-
developments that culminated in the " combing out legislation " of
1938 and 1939.
Fraenkel mentions one instance where a legal norm had been
changed after an adverse court decision had been rendered. But he
fails to realize that this way of restricting -the effect of a judicial
decision radically alters the social status of the judiciary within the
community, although his admission that the " prerogative " state is
far more powerful than the " normative " state (p. 187) shows that

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 436 POLITICAL SCIENCE QUARTERLY [VOL. LVI

even his dichotomy cannot pass over the state of affairs. The impact
of a judgment under what we call a constitutional regime rests on
the possibility of its acting as a check and balance to the action of
other forces. This sphere of free judicial determination is lost when
other state organs without any hindrance are able to change legal
norms at their will-the decision thus retaining value only as an
indication of the necessity of closing some legal loopholes.
If the judiciary has thus lost most of its power and has been assimi-
lated to the administrative bureaucracy, it has received a host of
routine tasks in which Fraenkel's normative calculability, however,
seems conspicuously absent. That such courts, like any other ad-
ministrative agencies, build up a system of distinctions and differen-
tiations, reversible and changeable without notice, nobody will deny.
But so do the so-called " prerogative " organs for the handling of
their daily tasks.
This system develops a high degree of technical rationality; but
the technical rationality of a hierarchical, bureaucratic machine,
which Fraenkel has correctly unmasked under the veil of community
ideology, and the decisions rendered by courts as independent organs
of society are two different things. The law courts of a competitive
society serve as umpires to regulate the conditions of competition.
The bureaucracy of fascism - judicial, administrative and police
alike - executes and smooths the path for the decisions reached by
the political and economic monopolies. That the German system is
based on a dual policy of "prerogative" constables and "normative"
judges, on a law-exempted police for the various assortments of rogues
and on a calculable rule of law for the law-abiding citizen and cor-
poration of substantial means seems to be an application of cherished
but antiquated doctrines to a radically changed reality.

OTTO KIRCHEIRIMER
INSTITUTE OF SOCIAL RESEARCH
NEW YORK CITY

Constitutionalism, Ancient and Modern. By CHARLES HOWARD

McILwAIN. Ithaca, Cornell University Press, 1940.-ix, 162 pp.
$2.50.

The publication of this brilliant analysis of the principle and his-

torical development of constitutionalism is very timely; for, as the
author points out in his preface, the attack on constitutionalism has
never been more threatening than it is just now.

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