Podcast Summary
Podcast: New Books Network
Episode: Douglas Morris, "Legal Sabotage: Ernst Fraenkel in Hitler's Germany" (Cambridge UP, 2020)
Host: Mark Clovis
Guest: Douglas Morris
Date: December 25, 2025
Overview
This episode of the New Books Network's "New Books in Biography" features a conversation between host Mark Clovis and Douglas Morris, author of Legal Sabotage: Ernst Fraenkel in Hitler’s Germany. Morris, a criminal defense lawyer and legal historian, explores the extraordinary life and work of Ernst Fraenkel—a Jewish lawyer who remained in Nazi Germany until 1938, defending political defendants, engaging with the resistance, and writing the groundbreaking treatise, The Dual State, which fundamentally shaped our understanding of Nazi legal and political structures.
The discussion probes Fraenkel’s personal courage, theoretical innovations (notably, the "Dual State" theory), and the precarious existence of Jewish lawyers under Nazi rule. It also grapples with broader themes of legal ethics, resistance, and the moral dilemmas faced by lawyers in illiberal states.
Key Discussion Points & Insights
1. Douglas Morris’s Background and Path to Fraenkel
- Morris describes his dual existence as a criminal defense lawyer for indigent defendants in New York and an independent legal historian (01:59).
- His earlier research focused on Max Hirschberg, another leading Jewish defense lawyer, whose life introduced him to broader questions about political and non-political justice in Germany.
- His curiosity led him to Fraenkel, whose wartime activities as a lawyer and theorist were less explored in existing scholarship.
“What intrigued me was that Fraenkel is a very prominent figure in 20th century German intellectual history... but the least study of Fraenkel was what he did during the Nazi era. And what he did during the Nazi era was really quite remarkable.”
— Douglas Morris (04:30)
2. Fraenkel’s Life in Nazi Germany and His Legal Work
- Morris outlines Fraenkel’s unusual decision to remain in Nazi Germany until September 1938, when most prominent Jewish lawyers had either fled or been driven out (04:30–12:41).
- Fraenkel took extraordinary risks: representing political defendants (often resistance members), acting as a conduit for underground communications, writing and distributing illegal pamphlets, and composing The Dual State while under constant threat.
- Tracking Fraenkel’s activities was difficult due to destroyed records, few primary sources, and Fraenkel's own postwar reticence, but Morris found evidence that Fraenkel’s resistance and representation exceeded even his initial expectations.
3. The ‘Dual State’ Theory (13:23–18:02)
- Fraenkel’s seminal contribution was his Dual State theory, describing Nazi Germany as split between:
- Prerogative State: Realm of arbitrary power and official violence, epitomized by the Gestapo, SS, and SA, where citizens had no legal protection.
- Normative State: The continuing (but corrupted) legal order, composed of both traditional and new Nazi laws.
- The regime’s legal structure was dynamic: the prerogative state continuously undermined and remade the normative state, gradually eroding any semblance of lawful order.
- Fraenkel rejected the postwar narrative (advanced by former Nazi jurists) that claimed adherence to the "rule of law" within the "normative state."
“Frankl, in using the term the normative state, did not mean the rule of law... He was talking about the legal system as it existed in Nazi Germany, which consisted of traditional institutions and laws, and of course, newly enacted Nazi law.”
— Douglas Morris (13:23)
4. Jewish Lawyers under the Nazis (19:12–25:54)
- Morris details the stepwise exclusion of Jewish lawyers: initial violence in March 1933, followed by the Law on the Admission to the Bar (April 1933), which disbarred most but left exceptions for veterans and senior lawyers.
- Fraenkel’s World War I service allowed him to continue practicing until final disbarment in 1938, but he operated under constant economic, social, and psychological pressure.
- He provides comparative context, noting that many of Fraenkel’s peers either fled, committed suicide, or endured isolation.
“What happened was that in the course of 1933, approximately 2/3 of Jewish lawyers remained as lawyers and Fraenkel remained as a lawyer because he was a veteran.”
— Douglas Morris (19:12)
5. Fraenkel’s Legal Practice as Resistance (26:34–39:34)
- Fraenkel represented numerous resistance members from small, fragmented socialist groups, often defending them in political trials involving accusations like illegal pamphleteering or "treason."
- His courtroom strategy was understated but effective: avoiding publicity, systematically questioning witnesses, and exposing evidence of confessions obtained under torture.
- Notable case: In a women’s prison mutiny trial in Jauer, Fraenkel and his colleagues secured acquittals through meticulous cross-examination, even amid an environment designed for intimidation and abuse (35:00–37:00).
- The consolidation of police powers under Himmler in 1936—marking a high tide for the prerogative state—marked a watershed, drying up many of Fraenkel’s legal opportunities and heightening personal risk.
“There was nobody who had as many contacts with as many of these different small resistance groups as Fraenkel...because he was representing them in court as they were charged with various crimes of subversion and treason.”
— Douglas Morris (26:34)
6. Scholarship as Resistance & the Turn to Natural Law (39:34–50:20)
- Fraenkel’s illegal writings in the mid-1930s aimed to bolster social democratic resistance, blending inspiration with a sober awareness of risk.
- He later became more pessimistic, realizing the Nazi regime’s capacity to crush resistance, and shifted towards theorizing how resistance could still be justified.
- Fraenkel turned to the concept of natural law—a source of moral authority and justification for resistance outside Nazi statutes. In the Dual State, he expanded his audience, advocating for a broader coalition of resistors beyond social democrats.
“Because we work illegally, we keep ourselves fresh. That is the point of illegal socialist work in the Third Reich: to infuse the workers with strength, the waverers with trust, the sufferers with hope, and the rulers with fear."
— Ernst Fraenkel, 1935 essay (quoted at 43:10)
7. Fraenkel’s Legacy: The Lawyer’s Dilemma under Dictatorship (50:20–59:59)
- The final discussion considers the ethical challenge for lawyers in settings hostile to the rule of law.
- Fraenkel leveraged what limited procedural protections remained, knowing when to push and when to retreat to avoid fatal exposure—a balance of courage, tactical maneuvering, and luck.
- The Nazi regime’s disregard for legal institutions ironically enabled Fraenkel to continue operating under the radar.
- Fraenkel’s and his colleagues’ efforts, like learning about and documenting torture, became a subtle but vital conduit for information to reach the external resistance, yet he was under constant threat as demonstrated by Nazi “watch lists.”
“The successes that Fraenkel could have in 1934 and 1935 in court were increasingly no longer available...because the Nazi regime reconstituted the judicial system...[and] the successes that Frankl could have in 1934 and 1935 in court were increasingly no longer available.”
— Douglas Morris (51:00)
Notable Quotes and Memorable Moments
-
On Fraenkel’s significance:
"What struck me was that his most important work was The Dual State. And the least study of Fraenkel was what he did during the Nazi era. And what he did during the Nazi era was really quite remarkable."
— Douglas Morris (04:30) -
On Jewish lawyers' persecution:
“Jewish lawyers in Nazi Germany were an extraordinarily large proportion of the legal profession...and when the Nazis took power, they wanted to get rid of Jewish lawyers.”
— Douglas Morris (19:12) -
On representing resistance:
“...among other things, there was nobody who had as many contacts with as many of these different small resistance groups as Fraenkel, because he was representing them in court...”
— Douglas Morris (26:34) -
Fraenkel on the purpose of resistance:
“Because we work illegally, we keep ourselves fresh. That is the point of illegal socialist work in the Third Reich: to infuse the workers with strength, the waverers with trust, the sufferers with hope, and the rulers with fear.”
— Ernst Fraenkel (quoted by Morris, 43:10)
Timestamps for Key Segments
- Douglas Morris Introduces Himself: 01:59–04:15
- Why Fraenkel? Early Research Journey: 04:15–12:41
- Explaining the Dual State Theory: 13:23–18:02
- Persecution and Strategies of Jewish Lawyers: 19:12–25:54
- Fraenkel’s Legal Resistance and Casework: 26:34–39:34
- Illegal Essays & Evolution of Resistance Thought: 39:34–50:20
- Legacy & Moral Dilemma for Lawyers: 50:20–59:59
- Current Work & Thoughts on Bonhoeffer: 60:04–62:16
Concluding Thoughts
Morris’s account reveals Fraenkel as a rare figure—a lawyer who not only endured and opposed Nazi tyranny but also produced enduring theoretical insights into totalitarian law. Fraenkel’s life is a case study in the ethical and strategic dilemmas facing defenders of legality under dictatorship. His scholarship, notably the Dual State, remains a foundational text for political science and legal philosophy, while his lived example provides inspiration and lessons in tactical courage for lawyers and resisters everywhere.