Tuesday, July 08, 2008

The Unitary Executive Dual State "two-tiered system of justice" 


Text (excerpt):
"This week's FISA 'revisions' will cement this two-tiered system of justice. The nation's largest telecoms broke our spying laws for years, but Congress awash in telecom money and influence, is about to give them retroactive lawbreaking license.

Why? Because although a crime is a crime when common Americans commit it, the Washington Establishment justifies crimes that are committed by their own as benign "policy disputes" - or crimes committed "for our own Good."

Worse, the Washington Establishment sells this two-tiered justice system by disseminating rank falsehoods and deceiving the public about what they're really doing: Image with text / Washington Post ad

Glenn Greenwald (Salon.com): Aug. 8, 1974 vs. July 9, 2008 (Tuesday July 8, 2008)

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- - - THE DUAL STATE - - -

N [Carl Schmitt]
...articulated a theory based entirely upon the will of the sovereign and articulated a new basis for authoritarian democracy that paved the way for and justified the National Socialist assertion that the will of the Fuehrer represented the will of the Volk and thus that his pronouncements, formally promulgated, became thereby "law."

~ Peter C. Caldwell and William E. Scheuerman, eds. From Liberal Democracy to Fascism: Legal and Political Thought in the Weimar Republic. Studies in Central European Histories Series. Boston and Leiden: Humanities Press

Ernst Fraenkel was the first to analyze the multi-dimensionality of the National Socialist political order and to characterize it with the terms normative state and prerogative state. Fraenkel’s analysis of the Dual State - conceptualized as a permanent state of emergency, aimed not only at destroying the civil legal order, but civil society as well...

~ Michael Wildt, The political order of the Volksgemeinschaft: Ernst Fraenkel’s Dual State revisited

N [ Fraenkel, Ernst. The Dual State: A Contribution to the Theory of Dictatorship.Translated From the German by E.A. Shils, in Collaboration with Edith Lowenstein and Klaus Knorr. New York: Oxford University Press, 1941 ]:

This classic study is one of the standard works on constitutional law, jurisprudence and judicial administration in Nazi Germany. Also considered one of the finest analyses of totalitarianism, it was written in Germany in the late 1930s and completed in the United States in 1940, where Fraenkel [1898-1975] lived after fleeing the Nazis in 1938. The title derives from Fraenkel's thesis that National Socialism divided the law into two co-existing areas. The first of these, The Normative State, protects the legal order as expressed in statutes, decisions of courts and the activities of administrative agencies. Its counterpart is the Prerogative State, which is governed by the party. It exercised "unlimited arbitrariness and violence unchecked by any legal guarantees". "As a detailed record of what has happened to the Rechtstaat under totalitarian auspices, this book is without rival."

~ Fritz Morstein Marx, Harvard Law Review


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