Introduction; 1. Setting the scene of a Jewish lawyer, like Fraenkel, in nazi Germany; 2. Fraenkel as a social democrat practicing law in nazi Germany; 3. Fraenkel as an essayist supporting the illegal underground; 4. Fraenkel as a scholar renouncing the nazi regime's dual state; 5. Thinking about legal justifications for sabotaging a tyrannical regime; Conclusion. The Ernst Fraenkel dilemma.
A stirring account of the years that the leftist Jewish lawyer Ernst Fraenkel spent in Nazi Germany resisting the regime.
Douglas Morris is both a legal historian and a criminal defense attorney for indigent clients in New York City. He has published widely on twentieth-century German legal history and was a recipient of the 1998 Thurgood Marshall Award from the Association of the Bar of the City of New York for serving 'as pro bono counsel to a human being under a sentence of death'.
'German-Jewish lawyer Ernst Fraenkel is remembered for his study of
Nazi Germany, The Dual State. But talented historian Douglas Morris
goes far beyond reconstructing Fraenkel's biography, and following
his path to his classic book, in order to dramatize the difficult
choices of a pivotal lawyer in resistance. The result is an
absorbing contribution not just to the history of German law in the
twentieth century. It helps us to ponder the dilemmas of resistance
for believers in the rule of law anywhere and even today.' Samuel
Moyn, Henry R. Luce Professor of Jurisprudence, Yale University,
Connecticut
'There is a rich biographical and analytical literature on the
lawyer and political scientist Ernst Fraenkel. We know his clear
description of the Nazism as a 'dual state', we also know how
important he was for the modernization of political theory,
especially in Western Germany. But an investigation of his
activities as a lawyer and author in the underground after 1933,
based on all available sources, has not yet been carried out. It is
presented here in an excellent manner, and at the same time it
sheds light on the old problem: How can one use the legal order as
a means of sabotage against a system of tyranny?' Michael Stolleis,
Professor Emeritus of Legal History, Wolfgang-Goethe-University,
Frankfurt am Main
'Ernst Fraenkel was an astonishing figure. For the first five years
of the Nazi regime, this Jewish, Social Democratic lawyer
courageously defended political opponents of Nazis in court, while
also essaying brilliant underground critiques of the Nazi legal
system. Morris, himself a practicing lawyer and an accomplished
scholar, has written an elegant - and all too timely - study of the
possibilities and limits of resistance to a regime of perverted
legality.' Lawrence Douglas, James J. Grosfeld Professor of Law,
Jurisprudence and Social Thought, Amherst College, and author of
The Right Wrong Man: John Demjanuk and the Last Great Nazi War
Crimes Trial
'Morris not only empathically portrays the personality of the 35-40
year-old Fraenkel. He also thoughtfully illuminates his immediate
surroundings in the resistance … And he incisively works out the
different intellectual strands that the 'intellectual twins' [(p.
174)] Fraenkel and Neumann followed as they tried - one on the
spot, the other from exile - to explain the character of the Nazi
regime.' Rainer Eisfeld, translated from Politische
Vierteljahresschrift
'For historians of the period … examining institutions and
professions has become essential, and when it comes to the legal
system, Morris's account will be required reading.' Jon M. Sands,
The Federal Lawyer
'… Morris has performed the truly remarkable feat of piecing
together and analyzing Fraenkel's legal practice in the Third Reich
on the basis of extremely limited and scattered historical evidence
… Morris greatly advances our understanding of Fraenkel's 'dual
state' theory … His book is a must-read for anyone interested in
political theory.' Richard F. Wetzell, EuropeNow Journal
'Morris has offered us a close and sensitive reading of Fraenkel's
remarkable years under Nazism, one that deepens our understanding
of Fraenkel and of the Nazi criminal justice system in those first
five years, but one that also invites reflection on what it means
to pursue justice when the system no longer delivers justice.' Sace
Elder, Central European History
'Douglas Morris has produced an outstanding intellectual and
jurisprudential study of Fraenkel in Nazi Germany, which offers a
careful and nuanced narrative of Fraenkel's experience as an
opponent of the Nazis, and grounds this fascinating story with
jurisprudential insights and contextualised detail. Fraser
later writes: Morris' analysis of this type of intellectual
resistance is rigorous and essential to any understanding of
current debates on how opposition to legalised tyranny might be
possible. And he writes at the end: The intellectual history
of the possibility of a progressive oppositionist legal theory …
must now begin with Morris' monumental study of Ernst Frankel's
attempts to embody and theorise resistance to totalitarian regimes
and their juridical apparatuses.' David Fraser, The Modern Law
Review
'Morris's book provides a much more nuanced and wide-ranging
analysis of Fraenkel's activities and writing during the Third
Reich than can be conveyed in this short review … His book is a
must-read for anyone interested in political theory, the Nazi legal
and political system.' Richard F. Wetzell, Europe Now
'… a source-intensive, detailed study of Fraenkel's resistance in
Nazi Germany, which significantly enriches research.' Michael
Wildt, H-Soz-Kult von
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