The preamble and Article 1 of the Reichstag Fire Ordinance show how the civil rights enshrined in the Weimar Constitution were legally abolished by the Hitler government: The Reichstag Fire Ordinance is the common name of the Reich President`s decree for the protection of the people and the state, which was issued by Federal President Paul von Hindenburg on the advice of Reich Chancellor Adolf Hitler on 28 February 1933 in direct reaction to the Reichstag fire. The decree abolished many of the most important civil liberties of German citizens. As the Nazis held positions of power within the German government, the decree was used as a legal basis for the imprisonment of people considered opponents of the Nazis and to suppress publications that were not considered „friendly“ to the Nazi cause. The decree is considered by historians to be one of the key steps in the establishment of a one-party Nazi state in Germany. Restrictions on personal liberty, freedom of expression, including freedom of the press, the right of association and assembly, interference with the secrecy of letters, letters, telegraphs and telephones, home search and seizure orders, as well as restrictions on property, even outside prescribed legal limits, were declared legal. The „Reichstag Fire Ordinance“ first provided the legal basis for a wave of arrests of opposing candidates for the upcoming Reichstag elections and now for interventions of the type described against all persons and associations whose existence or activity was considered an obstacle to the envisaged transformation of Germany in the National Socialist sense. Theoretically, Article 48 gave the Reichstag the power to demand the repeal of the measures implementing the Reichstag Fire Ordinance. However, any realistic chance of being cancelled ended in July; By then, the other parties had been completely banned or intimidated into disbanding, and the NSDAP had been declared the only legal party in Germany. An ethnography of law created in the most frightening circumstances, The Dual State is one of the most scholarly books ever written about dictatorship. It contained the first comprehensive institutional analysis of the rise and nature of National Socialism and was the only such analysis written in Germany. Although the concept of dual state with its two halves – the prerogative of the state and the normative state – was well received and widely examined after its publication in the United States in the early 1940s, it has received little attention since then. This is regrettable because, as I have shown elsewhere, the idea of the dual state is directly linked not only to the theory of dictatorship in the twenty-first century, but also to the theory of democracy.2 This new edition of Fraenkel`s largely forgotten (and long out of print) monograph aims to restore it to its rightful place as a classic of the legal and social sciences.
It is also working to make it more widely available to researchers and students in related disciplines. Given the flourishing literature on democracy and the rule of law – in all its manifestations – as well as the constant political concern to promote the two changing societies in the world, a fresh start from one of the most forward-looking descriptions of legal conflicts of our time is not only timely, but long overdue.3 The Reichstag Fire Ordinance remained in force throughout the Nazi era. Hitler was allowed to rule under martial law. Together with the Enabling Act, it constituted the legal basis of Hitler`s dictatorship. Thousands of Hitler`s decrees, such as those that made Germany a one-party state, were explicitly based on his authority and thus on Article 48. This was one of the main reasons why Hitler never officially abolished the Weimar Constitution, although it no longer had any material value after the adoption of the Enabling Act. In his book The Coming of the Third Reich, British historian Richard J. Evans argued that the Enabling Act was legally invalid, in part because of the role of Reich Commissioners in the Nazification of States. Evans argued that the states were „not properly constituted or represented“ in the Reichsrat and that, therefore, this house`s vote on the passage of the Enabling Act was „irregular.“ [3] Within hours of the fire, dozens of communists were thrown into prison.
The next day, officials from the Prussian Ministry of the Interior, headed by Hermann Göring, discussed ways to legally secure the arrests. Ludwig Grauert, the head of the Prussian state police, proposed an emergency presidential decree under Article 48 of the Weimar Constitution, which gave the president the power to take all necessary measures to protect public safety without the consent of the Reichstag. He reportedly suspended most civil liberties under the pretext of preventing further communist violence. There have already been discussions in cabinet about adopting such measures. Justice Minister Franz Gürtner, a member of the National Socialist coalition partner, the German National People`s Party (DNVP), had in fact submitted a draft regulation to the cabinet on the afternoon of 27 February. [3] The Nazis` use of the Reichstag Fire Ordinance to give their dictatorship the appearance of legality, combined with the broader abuse of Article 48, was still fresh in the memory of the authors of the Post-War Basic Law for the Federal Republic of Germany. They have chosen to drastically reduce the powers of the president, to the point that they have de facto little executive power. § 3 The authorities of the Länder and the municipalities (associations of municipalities) shall comply with the orders of the Reich Government issued on the basis of Article 2 within the scope of their competence.