On September 20, 1938, a man who had witnessed the rise of fascism packed his suitcases and fled his home in Berlin. He arranged to have smuggled separately a manuscript that he had drafted in secret over the previous two years. This book was a remarkable one. It clarified what was unfolding in Berlin at the time, the catalyst for its author’s flight.

The man fleeing that day was a Jewish labor lawyer named Ernst Fraenkel. He completed his manuscript two years later at the University of Chicago (where I teach), publishing it as The Dual State, with the modest subtitle A Contribution to the Theory of Dictatorship. The book explains how the Nazi regime managed to keep on track a capitalist economy governed by stable laws—and maintain a day-to-day normalcy for many of its citizens—while at the same time establishing a domain of lawlessness and state violence in order to realize its terrible vision of ethno-nationalism.

Fraenkel offered a simple, yet powerful, picture of how the constitutional and legal foundations of the Weimar Republic eroded, and were replaced by strongman-style rule in which the commands of the Nazi Party and its leader became paramount. His perspective was not grounded in abstract political theory; it grew instead from his experience as a Jewish lawyer in Nazi Berlin representing dissidents and other disfavored clients. Academic in tone, The Dual State sketches a template of emerging tyranny distilled from bloody and horrifying experience.

As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.

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The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one. In July 1936, for example, Fraenkel won a case for employees of an association taken over by the Nazis. A few days later, he learned that the Gestapo had seized the money owed to his clients and deposited it in the government’s coffers. Over time, the prerogative state would distort and slowly unravel the legal procedures of the normative state, leaving a smaller and smaller domain for ordinary law.

Yet, Fraenkel insisted, it was a mistake to think that even the Nazis would entirely dispense with normal laws. After all, they had a complex, broadly capitalist economy to mai