Donald Trump doesn’t need to destroy the court system to get his way, Aziz Huq writes. He just needs to create a shadow zone where the law no longer applies. Welcome to America’s “prerogative state”.
Aziz Huq teaches law at the University of Chicago. In a recent article in the Atlantic he describes the experience and legal observations of Ernst Fraenkel, a Jewish labor lawyer who fled Germany as Hitler rose to power. Fraenkel diagnosed events in the post-Weimar polity as the rise of a "dual state" in Germany, involving a "normative state" for everyday matters and the "prerogative state" that reflected the unfettered will of the rising dictator.
"The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers. Over time, the prerogative state would distort and slowly unravel the legal procedures of the normative state, leaving a smaller and smaller domain for ordinary law."
Huq’s summary and discussion of the analysis Fraenkel developed as a professor at the University of Chicago is haunting. And it is deeply prophetic for current developments in the "prerogative state" that Donald Trump is creating, with the assistance of the US Supreme Court. Huq’s book The Rule of Law: A Very Short Introduction is crucial reading for all of us.
Affirming Democracy, Gathering Resistance 