Justice Jackson and the Dual State [View all]

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This theory, recently discussed by Justice Ketanji Brown Jackson in a dissent, describes how moderates and the broader public can continue believing they live in a free society—lulled into complacency long past the point of no return—and even convinced that the rule of law remains intact, when in reality it has all but disappeared.

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In political theory, the “dual state” refers to a system where two distinct forms of governance coexist within the same political structure — one governed by law and legality, and another governed by arbitrary power and political expediency.

The concept was developed by Ernst Fraenkel, a German lawyer and political theorist, in his 1941 book The Dual State: A Contribution to the Theory of Dictatorship. Fraenkel used it to explain how Nazi Germany functioned.

Here’s the breakdown:

1. The Normative State
• Operates according to laws, courts, and procedures.
• Governs the “normal” aspects of life — business, civil law, private property, etc.
• Exists to maintain a façade of legality and stability, especially for the economy and bureaucracy.

2. The Prerogative State
• Operates outside or above the law, driven by political goals and ideological power.
• Embodies the regime’s arbitrary authority, exercised through the secret police, executive orders, and party directives.
• Has no legal constraints — its justification is political necessity or loyalty to the regime.

3. The Relationship Between the Two

The key insight is that both coexist. The normative state provides predictability and order, while the prerogative state intervenes whenever the regime’s interests demand it.
In Nazi Germany, for example, the courts, civil service, and businesses operated under legal norms — but the Gestapo and Nazi Party could override them at any time.

4. Modern Relevance

Fraenkel’s “dual state” framework is still used to analyze authoritarian and hybrid regimes today — where governments maintain a formal legal system but selectively suspend or bypass it for political opponents, journalists, or marginalized groups. As a result, the public can be left with a sense that the rule of law is intact when it is almost wholly absent.

*Portions of this text were drafted and edited with the assistance of OpenAI’s GPT-5 model, and subsequently reviewed and revised by the author for accuracy and clarity.

Justice Jackson’s dissent: Trump v. CASA, Inc., 606 U.S. ___ (2025)