This chapter discusses Ernst Fränkel’s analysis of Nazi Germany as a dual state that combined remnants of legal governance with a practice of permanent dictatorship. It is argued that Fränkel’s dual state thesis sheds a critical light on recent appropriations of the notion of material constitution. This claim is developed by way of an analysis and defence of Fränkel’s critique of Carl Schmitt’s concrete order thought.

The introductory chapter places Statute and Judgment and The Value of the State and the Significance of the Individual of the Individual in the context of Schmitt’s political and constitutional theory. It illustrates how certain key themes emerging in Schmitt’s early legal-theoretical writings – in particular, the problem of the realization of law – drive the development of Schmitt’s political and constitutional theory. The chapter also offers discussion of the intellectual and biographical background to Schmitt’s early legal-theoretical works.

Statute and Judgment offers Schmitt’s theory of adjudication. Schmitt responds to the attack on legal determinacy that is associated with the free law movement (a German precursor to pragmatist and critical approaches to adjudication). While Schmitt adopts the view, as put forward by proponents of the free law movement, that statutory law is inherently indeterminate and must fail to guide judicial decision-taking in particular cases, Statute and Judgment aims to reconstruct legal determinacy on the basis of an analysis of the customs and conventions of legal practice. Schmitt’s attempt to show how legal determinacy is possible prefigures later arguments to the effect that a situation of normality is a condition of the legitimate applicability of legal norms.

Contemporary legal practice wants to apply statute. It regards the ‘will of the legislator’ or the ‘will of statute’ as its controlling standard and it therefore answers the question of the correctness of a decision as follows: a judicial decision is correct in the event that it has been provided for by the legislator in the positive law – if a decision is taken in the way that has been prescribed by the relevant legislative authority, or at least (as one unreflectively adds, as though this were not something altogether different) in the way that this authority would have decided had it anticipated the case at hand.

In his 1914 monograph, The Value of the State and the Significance of the Individual, accepted as an Habilitation in law in the field of state theory in 1916, Carl Schmitt proceeds from a discussion of his view of the relation between law (Recht) and power (Macht), through a discussion of the role of the state in the realization of law, to a discussion of his view of the significance of the individual within the state. Schmitt argues that the value of the state consists in the realization of law in the world, while the significance of the individual is that of fulfilling the roles that the state assigns and ascribes to them for the completion of the state’s task of realizing law and right. Schmitt thus claims a great value for his view of the state and a correspondingly diminutive significance for his view of the individual.

In the last few years, it has often been pointed out that the provisions of a statute usually do not bring anything new in terms of content. The statute leans against existing orders of life and habits of intercourse; it makes use of the moral [45] opinions of the time and of the people, of cultural ideas. In brief, the legislative authority has, as far as concerns the content of its activity, more of an ordering and collecting than a productive character. There is a ‘rapport, que les loix ont avec les principes qui forment l’esprit général, les moeurs et les manières d’une nation’ [‘The laws stand in relation to the principles that form the general spirit, the habits and the manners of a nation’].

In view of the facts that the criterion of ‘conformity to statute’ is worthless, that those criteria that refer to ‘pre-juristic’ complexes of norms must ignore important facts of legal life and, finally, that it is necessary to find a criterion that is autochthonous to legal practice, the following formula will no longer appear to be paradoxical or challenging

The question concerning the relation of law and state, in the course of its scientific treatment, suffered the misfortune that a witty comparison was presented in place of an argument, in that it was said that the question boils down to that of the priority of the chicken and the egg. Although countless persons rest content with this ‘solution’, the comparison proves only how little the treatment of this important problem is capable of lifting itself above the sphere of a causal contemplation. It would be at all permissible to mention this comparison only if it were a matter of the investigation of historical events for the purpose of their causal explanation and if the law, as a concrete empirical phenomenon, were merely placed next to the state as an empirical reality of the same kind.

The objections that can be raised above all against a book about state and individual, are directed either against the results or the methods of the investigation, and, in accordance with this bipartition, proceed from two different kinds of critics. Whoever expects, in any author, an unbroken harmony with the content of the views that are held to be timely, or whoever faces the empirical manifestations of the law and of the state with concrete purposes and goals, will compare the finished formulations that articulate the conclusions of a book with their own results, which are presupposed as self-evident, and pass judgment accordingly, or perhaps even complain about the absence of a ‘result’.