A socialist labor lawyer in Berlin, Fraenkel fled Nazi Germany in 1938 and later settled in Chicago. His central claim was that the Nazis did not abolish Weimar law outright but replaced it with a dual system: a “normative” sphere governed by rules, and a “prerogative” sphere where violence operated free of legal restraint. To keep capitalism functioning, the regime preserved a façade of legal stability for commerce and civil disputes, even as repression expanded.
As Aziz Huq observed in a 2025 Atlantic essay, this allowed capitalism to coexist with dictatorship and genocide. Over time, as courts lost independence through cooptation and fear, the prerogative sphere overwhelmed the normative one, becoming the true center of power.