Dual State and Dual Morality: Legal Dilemma and Legal Latitude of Nazi Perpetrators

Ernst Fraenkel famously argued in 1941 that the fabric of the Nazi dictatorship consisted in juxtaposing a "normative state" (Normenstaat) based on traditional legislative, judicial, and law-enforcing bodies and a respective legal order and a "prerogative state" (Maßnahmenstaat), which exercised “unlimited arbitrariness and violence unchecked by any legal guarantees” against people considered to be enemies of Nazism. My paper argues that this juxtaposition based and fueled the perpetration of the Holocaust from 1941 on. On the one hand, the German legal and also the military code upheld the definition and prosecution of murder, and the military code prohibited the execution of a criminal order, e.g. committing murder. On the other hand, a plethora of orders (not laws), most infamously the (now so-called) Criminal Orders to the Wehrmacht in early simmer 1941 allowed German soldiers to do whatever they liked to enemy civilians (including but not limited to Jews) by guaranteeing amnesty in advance; the same applied to police officers and SS men. My paper will analyze how this legal contradiction played out in the mindsets of Nazi perpetrators. While it did so doubtlessly in rather different ways – with some individuals adhering to traditional legal norms and others deliberately ignoring them, as Holocaust scholars have shown many times – I will argue that the crucial significant of this contradiction consisted in diffusing and confusing legal as well as moral standards altogether. The juxtaposition allowed perpetrators to oscillate between the “normative” legal system and the “prerogative” pseudo-legal order and eventually threw them into a state of cynicism, fatalism and transgression in which illegal and immoral action no longer faced any boundaries – or only post factum, in nightmares and psychosomatic diseases.