What Ernst Fraenkel, Max Weber and Aziz Huq Can Teach Us About the Rule of Law
An impossible conversation across time. This AI-generated image imagines three scholars who never met. From left to right: Aziz Huq (born 1976), Ernst Fraenkel (1898–1975), and Max Weber (1864–1920). Together, their ideas offer a powerful way of understanding how the relationship between law and political power can gradually erode the rule of law.
A Lawyer in Berlin
How does a democracy begin to fail?
Most people imagine dramatic moments: soldiers in the streets, elections abolished or a constitution suspended. History is usually much quieter. Democracies often begin to change while their institutions continue to look reassuringly familiar. Courts still hear cases, governments still pass laws and elections still take place. The challenge is not recognising the end of a democracy. It is recognising the beginning of constitutional change while everyday life still appears perfectly normal.
That question led American constitutional scholar Aziz Huq to an almost forgotten book written in 1941 by a Berlin lawyer named Ernst Fraenkel. Huq was not searching for historical parallels. He was looking for a better way of understanding how constitutional systems evolve, and he found it in the observations of a man who had watched one democracy slowly transform from inside its own legal system.
Fraenkel practised law during the final years of the Weimar Republic and the first years of Nazi rule. Unlike politicians or journalists, he observed events from courtrooms rather than parliament. His days were filled with contracts, labour disputes and administrative decisions. It was an ordinary legal career in extraordinary times.
What puzzled him was not the speed of political change but the persistence of normality. Berlin still looked like a functioning modern city. Businesses signed contracts, civil courts settled disputes and much of daily life continued much as before. Yet inside the legal system he began to notice a pattern that was almost invisible from the outside.
Commercial law remained predictable, but cases involving political opponents, trade unions and, increasingly, Jewish citizens followed a different logic. Administrative authorities acquired greater freedom, while legal safeguards quietly became less reliable. No single judgement explained what was happening. Only after watching countless ordinary cases did Fraenkel realise that Germany had not abandoned the rule of law. It had divided it.
He called this the Dual State. One part of government, the Normative State, continued to function according to established legal rules. Alongside it grew the Prerogative State, where political necessity increasingly outweighed legal principle. The institutions remained, but they no longer served everyone in the same way.
Fraenkel's insight remains striking because it challenges our instinctive picture of democratic collapse. Constitutional systems do not always fail because laws disappear. Sometimes they fail because the relationship between law and political power quietly changes while the institutions themselves remain standing.
A Forgotten Book Returns
Fraenkel escaped Germany in 1938 and published The Dual State three years later in the United States. The timing could hardly have been worse. The world wanted broad explanations of fascism and totalitarianism, while Fraenkel offered something more precise: an account of how constitutional government changes from within. His book earned the respect of specialists but never reached a wider audience.
For almost eighty years it remained largely forgotten.
Then Aziz Huq picked it up again.
What fascinated Huq was not Germany in the 1930s but Fraenkel's way of thinking. Imagine a debate about immigration. Most people immediately argue about whether a policy is fair or effective. Huq asks a different question: what is happening to the relationship between law and power? Has the executive gained greater discretion? Can courts still exercise meaningful oversight? Are legal safeguards applied equally, or are exceptions gradually becoming normal?
Those questions extend far beyond immigration. They can also be asked about emergency powers, universities, the legal profession or the relationship between national and regional government. The issue is not whether every development is alarming. It is whether constitutional institutions continue to perform the role for which they were created.
At this point another German thinker quietly joins the conversation. Long before Fraenkel, Max Weber argued that modern states depend upon impersonal institutions. Judges serve the law, civil servants serve the office and governments derive legitimacy from rules that apply equally to everyone. When personal loyalty gradually becomes more important than institutional restraint, the character of the state itself begins to change. Modern political scientists describe this as neo-patrimonialism.
Fraenkel and Weber illuminate different stages of the same journey. Fraenkel helps us recognise when the rule of law begins to fragment. Weber shows where that journey may eventually lead if institutions increasingly serve people instead of principles. Huq brings their ideas together, not to predict the future, but to sharpen our observation of the present.
Learning to See
That distinction is what makes The Dual State remarkable. It is not a handbook for recognising dictatorships, nor an invitation to compare every constitutional dispute with Germany in the 1930s. It is a reminder that democratic change is often gradual and that legal institutions deserve attention long before they visibly weaken.
Some books become classics because they perfectly explain their own age. Others spend decades on library shelves before a later generation discovers that they contain questions it suddenly needs. Fraenkel's book belongs to that second category. Written to understand one constitutional crisis, it eventually became a guide to observing constitutional change more carefully.
History rarely provides ready-made answers. At its best, it offers something more valuable: new ways of seeing. Ernst Fraenkel taught us to notice when the rule of law begins to divide into different realities. Max Weber reminded us why strong institutions depend on impersonal rules rather than personal power. Aziz Huq showed that these ideas still help us ask better questions about constitutional democracy today.
Perhaps that is why forgotten books matter. They do not survive because they predict the future. They survive because, many years later, they quietly teach us to look at the present with fresh eyes.
Further Reading
Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship
Aziz Z. Huq, How the Rule of Law Changes
Max Weber, Economy and Society
Hannah Arendt, The Origins of Totalitarianism
Steven Levitsky & Daniel Ziblatt, How Democracies Die
