Charles Simkins | Nov 11, 2015
In a land mark study of government in the Third Reich[1] , Ernst Fraenkel distinguished between the normative and positive state. His thesis has been given crisp expression as follows by Richard Evans:

On the one hand was the ‘normative state’, bound by rules, procedures, laws and conventions, and consisting of formal institutions, such as the Reich Chancellery, the Ministries, local authorities and so on, and on the other there was the ‘prerogative state’, an essentially extra-legal system that derived its legitimation entirely from the supra-legal authority of the leader.[2]  

In the early years of Nazi rule, the normative state (inherited from the Weimar republic and the preceding German Empire) had weight. The prerogative state had to work around it. An early example of the prerogative state in action was the execution without trial of a number of members of the Storm Division of the Nazi Party in 1934. Hitler and Goebbels knew that they had to spin (to use a modern term) this action and Hitler justified it in the following terms:

If anyone reproaches me and asks why we did not call upon the regular courts for sentencing, my only answer is this: in that hour, I was responsible for the fate of the German nation and was thus the supreme Justiciar of the German people![3]  

And it was not long before lawyers started to argue for the legitimacy of the Leader’s authority, subject to no checks or controls, derived from the ‘united will of the German people’.

One linguistic marker of the prerogative state in action was the use of the adjective ‘special’.  Special Action Cracow, for instance, consisted of the assault and arrest of professors at the Jagiellonian University, and this was part of a wider action to eradicate the Polish intellectual elite. Special Action T4 set up forced euthanasia of the incurably ill. And ‘special treatment’ meant, quite simply, murder.

The prerogative state grew like a cancer. The Nazis – no slouches at cadre deployment – saw to it that their members entered every sphere of German life. They also ‘co-ordinated’ organizations which might threaten their power, and dismantled some. Moreover, the Third Reich added new laws of their own in a constitutionally permissible way, some of which would later be found to constitute crimes against humanity. Nonetheless, the inherited normative state continued to exist, in ever attenuated form, right up to 1945. For instance, while the Oranienburg Street synagogue in Berlin was trashed during the pogrom of 1938, the Berlin police intervened to keep it from being destroyed, and it continued to be used for religious ceremonies up to March 1940. It was finally ruined by Allied bombing in 1943. And there is evidence that some commanders on the Eastern Front recognised the rights of their soldiers not to participate in the murder of unarmed civilians.

Nor was German public opinion completely malleable. One response to mobilization and continuous propaganda is simply boredom and disaffiliation. Goebbels was shrewd enough to recognise this, and to act accordingly[4]. Moreover, propaganda was complemented by popular programmes such as Winter Aid and Strength through Joy. The latter provided cheap holidays, sometimes abroad, more often at home, which ordinary German workers could afford. The defeat at Stalingrad at the beginning of 1943 energised German domestic opposition to the regime, since it was rightly seen as leading to the collapse of the regime. Mostly this increased energy was met by repression but, even in wartime, it sometimes had to be met by concession.

One problem for the Nazis was ‘mixed marriages’ in which one spouse was Jewish and the other not. In February 1943, Jewish members of families resulting from mixed marriages were arrested in Berlin. The non-Jewish members, knowing that the outcome was likely to be deportation and murder, responded by demonstrating. The news of the protest spread, and the result was that many (but not all) of the arrested were released.

In interpreting this history, three things should be borne in mind. First, it is inaccurate to regard the Third Reich as simply a roll out of Hitler’s Mein Kampf. That book was rambling and incoherent and, more importantly, full of dictatorial politics and still politics and subject to contingency. Second, the perspective of hindsight differs from the experience of actually living in the historical period. While protestations of complete ignorance were certainly not plausible, nonetheless, we now know things kept secret at the time. Living in the situation, one would have seen bad things happening from time to time, without the knowledge of how it would all turn out, and with the human tendency to hope even in bad times. Thirdly, the rise of the prerogative state does not imply the complete and immediate collapse of the normative state, even under conditions as extreme as that of the Third Reich. Rather, the prerogative state inserts itself illegally and insidiously, and extends itself, all the while progressively undermining the normative state.

In the 1990s, South Africans achieved the construction of the normative state at a level never seen before. We rightly received international acclaim for doing so. What a tragedy it would be if this achievement were to be undermined by the growth of a prerogative state within it.


Charles Simkins
Senior Researher 

[1] Ernst Fraenkel, The Dual State:  Law and Justice in National Socialism, 1941
[2] Richard J Evans, The Third Reich in Power, 1933-1939, Penguin, 2005
[3] Evans, op cit
[4] To a modern sensibility, Leni Riefenstahl’s film The Triumph of the Will, made during the Nuremburg Rally in 1934, leaves the viewer – despite the mass formations and goose stepping – with an overwhelming feeling of tedium.