Putin’s Russia Embodiment Today of Fraenkel’s ‘Dual State’ Theory about Nazi Germany, Lea and Borukh Say

Paul Goble

            Staunton, Aug. 29 – In 1941, Ernst Fraenkel, a German-Jewish legal theorist, described Nazi Germany as “a dual state,” one in which adopted laws and court decisions governed most of the population but in which the state reserved to itself the right to deal with its enemies in any way it saw fit.

            Today, Aaron Lea and Borukh Taskin, two Israeli scholars of Russian origin, say that Putin’s Russia embodies this theory and thus uses law in this way instead of viewing all law as the weapon of the ruling class or in the case of Russia today of the ruling loyalist camarilla (kasparovru.com/material.php?id=6A92D8601945F&utm_source=dlvr.it&utm_medium=facebook).

            They are explicit: “The Russian Federation is a modern embodiment of the "dual state." Civil courts, arbitration tribunals, and commercial law operate with a fair degree of predictability -- precisely what ensures the economic stability the regime needs to survive. For decades, foreign investors have worked with Russian counterparts by relying on this "normative state."

            But as the cases of Navalny and Khodorkovsky show, there is the other part of the state as Fraenkel described it, “the prerogative state” in which the rulers decide  how to act. Even in these cases, the Kremlin sought to maintain “a procedural façade” but “behind it, Lea and Borukh say, “the rules were broken.”

            What is critically important, they continue, is to avoid “conflating the normative state with the prerogative state” because that oversimplifies the picture of what is happening in Putin’s Russia now and how different it is from the definition of the role of law in totalitarian states which act as if all law is simply a weapon of the ruling class.

            That is especially important given that today’s “Russian ‘ruling class’” is not a class in the usual sense. Rather, it resembles what Max Weber called “a patrimonial ‘clientele’ – a personalistic network where loyalty to the leader personally supersedes all other criteria for membership.”

            This group is “not a  class defined by background, wealth, or professional affiliation. Rather, It is a collective defined by a single criterion: recognition of the center’s right to set the boundaries of the permissible and a willingness to act within those limits,” Lea and Borukh argue. 

            Today, support for Putin’s war in Ukraine has become “the ultimate litmus test for membership” in the clientele, they say. Those who express any doubt or reservation about Russia’s actions in Ukraine are immediately and necessarily excluded from the normative realm and put at risk as members of the prerogative legal regime.

            They conclude: “the Russian Federation is therefore not a totalitarian state where the entire legal system serves as a political weapon. Instead, it is a dual state in which the ruling clientele employs the prerogative sector against its enemies—while reserving the normative sector for itself and those loyal to it.