Legal Theory and the Politics of Legal Space

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In the Dual State, Ernst Fraenkel argued that the Nazi state was a Dual State which consisted of two states that existed side by side. On the one side was the Normative State, which contained whatever remained of the law and institutions of the Weimar legal order. On the other side was the Prerogative State, which consisted of the apparatus of the Nazi Party wherein the leader’s will was the ultimate source of authority. David Dyzenhaus contrasts the Dual State with three other juridical state forms. All three are on what he calls the ‘continuum of legality’, which means that those who are subject to its law will be part of a ‘jural community’ the community of legal subjects bound together by law.

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