Ernst Fraenkel

Ernst Fraenkel was a political scientist and one of the few émigrés who permanently returned to Germany after World War II; his experience as an expatriate in the United States greatly influenced him, and he was determined to apply his political science expertise to the process of democratization and the reinstatement of democratic institutions in postwar West Germany. Like many scholars of his generation, Fraenkel’s multifaceted personality was shaped by his religious identity and his emigration experience: from a socialist he changed into a pluralistic democrat; from a “German” he became a “Jew,” an “American,” and later a “German” again; from an active political dissident he transformed into an astute analyst of political systems; from a jurist and a lawyer for labor rights he developed into one of the most influential political scientists and democratic theorists in postwar Germany (Ladwig-Winters 2009, 7). Today Fraenkel is most widely known for his achievements as one of the founding fathers of political science in West Germany, who helped to install this academic discipline alongside such figures as Otto Suhr, Dolf Sternberger, and fellow émigrés Eric Voegelin and Otto Kirchheimer. While he did not build a school of thought in political theory, the creation and work of the Otto-Suhr-Institute and the John F. Kennedy Institute for American Studies in Berlin are a testament to the continued importance of his legacy and body of work.

Professional and Political Socialization in Weimar Germany

Fraenkel was born on December 26, 1881 in Cologne to a Jewish business family that was affected by the Jewish Enlightenment Movement (Haskalah), which sensitized them to both the new Jewish political movement and Jewish emancipation. After his mother passed away in 1915, he and his older sister Maria moved to live with their uncle in Frankfurt, where Ernst finished school. In the following year, he volunteered for military service and, due to his writing skills, was elected into the soldier’s council. It was within this environment, that Fraenkel’s political and social awareness was shaped. Soon after he completed his studies of the void labor contract (Dissertation: Der nichtige Arbeitervertrag), he settled as a lawyer in Berlin, where he worked closely with Franz Leopold Neumann. During his academic studies, he was significantly influenced by his mentor Hugo Sinzheimer—also the teacher of Otto Kahn-Freund, Hans Morgenthau, and Carlo Schmid—who focused not only on labor law, but also tried to challenge his students with new ideas and views. The start of Fraenkel’s political life can be dated to 1921, when he became a member of the Social Democratic Party of Germany (SPD). It was deepened through his engagement for socialist politics in the German Metalworkers’ Federation and later, when the National Socialists took power in 1933, his choice to ally himself with a number of resistance groups such as the International Socialist Fighting Alliance (Internationaler Sozialistischer Kampfbund). Until his emigration, Fraenkel took on the perilous task of representing politically persecuted clients.

Growing up in a time when the first German republic emerged, the young socialist jurist was able to observe closely the construction and development of its constitution. Thus, he analyzed very early on the structural features and deficits of the republic, and identified the elemental characteristics of the subsequent Nazi regime. As a lawyer, his attention was always primarily on the constitutional weaknesses of the Weimar political system which he viewed pragmatically: As the republic was caught in its political crisis in the early 1930s, Fraenkel was interested in solving the problem by modifying the existing constitution. Hence his recommendation offered the chance to preserve the juridical foundation of the republic by strengthening the parliament and granting them the power to pass a constructive vote of no confidence in the Federal Chancellor. Later this became a profound part of the postwar GermanGrundgesetz (Article 67) to protect Germany’s new democracy against forms of totalitarianism and crises like those present at the end of the Weimar Republic.

Analyzing the Nazi State from the United States: Political and Legal Scholarship in Exile

Although Fraenkel was allowed to continue practicing law due to his World War I military service, he was soon attacked as a Jew and a political opponent of Nazi Germany, and ultimately had to leave his homeland in 1938. He first arrived in the United Kingdom, before immigrated with his wife Hanna to the United States in 1939. His initial request for employment at the New School for Social Research was denied, despite having reached out to friends and others he knew working there. At that time the New School had a magnetic pull for many European Jewish émigré intellectuals as it offered them a chance to continue their research after being forced to leave their positions at firms and universities in Europe. In the years 1935 and 1936 alone, the Graduate Faculty received about 5,000 applications. After arriving in the United States and getting news of his rejection by the New School, Fraenkel knew he had to start all over again if he wanted to succeed professionally in American society. His golden opportunity was a grant from the American Committee for the Guidance of Professional Personnel, which allowed him to begin his studies of American law in 1939 at the University of Chicago, where he earned a J.D. in 1941. Life on campus and exchange with American students and friends contributed to his adaptation to the American way of life, with which he was fascinated.

His relations with other émigrés remained largely limited to his circle of friends from Germany. Fraenkel consciously embraced the idea of the coexistence of various cultures and identities; of not being forced to give up one’s identifying characteristics and yet still being a part of the greater ensemble of American society. After passing the bar, he immediately started working for a law firm in Washington D.C. which aimed to enforce American property claims in Europe. With the American entry into the war, however, Fraenkel’s employment was terminated in January 1942. Since 1940, Fraenkel had been a stateless person which now precluded employment by a U.S. federal agency. Consequently he and his wife moved to New York where Fraenkel again approached the New School.

By now, scholars at the New School had formed two camps regarding the evaluation of the Nazi regime: On the one side, Franz L. Neumann, Otto Kirchheimer, Arkadius Gurland, and Herbert Marcuse, and on the other, Friedrich Pollock, Max Horkheimer, and Theodor W. Adorno. The émigré scholars were divided by their highly polarized views that resulted from differing methodological approaches with respect to the analysis of the Nazi regime. The central discussion revolved around whether political forces can dominate economic ones or whether politics must bow before. From a political-economic perspective, Neumann and Kirchheimer insisted that the primacy of the economy prevailed in the form of “totalitarian monopoly capitalism” in Nazi Germany. In the opposing camp, Pollock and Horkheimer held the view that a “state capitalistic order” had taken shape by following the principles of politics. Their debate resulted in Neumann’s departure from the New School. Though Fraenkel’s position was clearly at odds with Horkheimer’s, Fraenkel chose not to become entangled in this particular conflict. He continued his effort to gain employment at the Graduate School by contacting David Riesman, the president of the American Committee, who recommended Fraenkel as a lecturer in a letter to Hans Staudinger, dean of the faculty. Again his attempt proved in vain, but instead, Fraenkel received the chance to launch a number of courses instructing European lawyers in American law and comparative law at the Free French University, the École libre des Hautes Études, under the umbrella of the New School. Twenty years later his aspiration to lecture at the Graduate Faculty of the New School nearly became a reality, but this time Fraenkel declined their job offer because—at the time of the second Berlin Crisis—he wanted to stay in Germany.

During the war years, Fraenkel engaged the Nazi regime and its consequences in both his practical and in his intellectual work. He supplemented his income by working for two refugee organizations: the American Federation of Jews from Central Europe, under the direction of Rudolf Callmann, and the Self-help for Émigrés from Central Europe, under the direction of theologian Paul Tillich; both of whom Fraenkel knew from Germany. After only couple months he quit his positions at the refugee organizations, though he continued to work for them occasionally, because he decided to focus on his research.

While in Chicago he was able to finish his manuscript on the NS State (Urdoppelstaat, 1938) which later became one of his best-known publications: The Dual State (1941). In analyzing the demise of the Weimar Republic, Fraenkel asserted the coexistence of a “prerogative state” (Maßnahmenstaat) and a “normative state” (Normenstaat), two areas of the system of Nazi government he explicated to describe the contradiction of legal order (Rechtsordnung), legal doctrine (Rechtslehre), and law in action (Rechtswirklichkeit): In contrast to the “prerogative state” that, in the hands of the NSDAP, created limited constitutional standards, a lack of norms, and the rule of random actions, under which the goal of the law was no longer to achieve justice for all citizen, Fraenkel described the “normative state” as a return to the traditional institutions of capitalist society. Because of this, tensions repeatedly resulted between the traditional public authorities of the “normative state” and the instruments of the “prerogative state.” With the start of 1936, Fraenkel noted the resistance of the traditional lawmaking institutions was finally weakened. He diagnosed this as highly dangerous for the safety of all citizens deemed to be opponents of Nazi Germany, resulting from an evident conflict between constitutional expectations and constitutional reality. By these means, the Nazis had built a dual state that exposed its citizens to the arbitrary will of the ruler.

With the publication of The Dual State, Fraenkel sought not only to contribute to the understanding of the legal reality in the Third Reich, but also to directly aid the fight against National Socialism. According to Fraenkel, the concept of totalitarianism had many different and unclear meanings, and needed to be well defined in order to fully comprehend the emergence of the National Socialist state. Unlike many other books, such as Neumann’s Behemoth—a major analysis of the Nazi system published around the same time, Fraenkel’s study was the only one written largely in Germany, prior to the author’s exile. He revised the first version of Urdoppelstaat to make it more accessible for the American audience by deemphasizing passages on class warfare and by including some formal concepts popular in current American political science. However, despite the publication’s significance as the first examination of Nazi Germany from an insider’s point of view and the largely positive reviews it received in political science and legal journals, Neumann’s work attracted more public attention.

In August 1944 Ernst Fraenkel became an American citizen. His continued contact with friends who had fled to Great Britain and the Netherlands, as well as with family members who still lived in Germany, deepened his gratefulness for being “in complete freedom and peace,” as he noted in a letter to his friend Otto Kahn-Freund (Ladwig-Winters 2009, 159). He was, however, seriously concerned by what he perceived to be the neglect of foreign issues by U.S. media in light of what was happening in Europe. The information Fraenkel received about the atrocities committed against Jews from Franz L. Neumann, who worked for the Office of Strategic Services(OSS), reinforced his concerns. In early 1944, Fraenkel started to work for the Foreign Economic Administration (FEA) with fellow German émigrés Hedwig Wachenheim and Hans Kelsen. The FEA was in charge of developing a plan for Germany’s reconstruction after its defeat; besides economic considerations, this analysis also addressed issues of constitutional law, administration, civil services, constructing judiciary, and the role of the labor movement. Fraenkel’s decision to work for the U.S. government resulted primarily from his belief that a change of power dynamics in Germany could not happen from within, because German civil society had been annihilated by the regime and was not likely to be revitalized soon.

Return to Europe: Translating American Experiences into Postwar Democratization

After the FEA were dissolved in 1945, Fraenkel became a consultant for the Marshall Commission, and the focus of his work shifted to questions of postwar democratization. In early 1946 he set off to Korea in order to participate in democracy building and prepare the country for its free elections. However, this operation was interrupted and became obsolete when the Korean War broke out and he was forced to escape to Japan. In addition to his efforts in Asia, he was also intensely involved in Germany’s democratization process, for which he worked on some proposals.

Despite the fact that Fraenkel had suffered discrimination in Nazi Germany, and had to cope with the extent of its cruelties and the trauma of the Holocaust, he remained involved in the public life of the country of his birth. Yet it was not only his responsibility towards Germany that prompted him to return. In fact, he wanted to be to make his services available to the U.S. government for the destruction of the Nazi regime because of his gratitude to the country that had given him refuge and allowed him to restart; to Fraenkel, America had saved his life and represented liberty as well as humanism. On this account, and at the encouragement of friends like Otto Suhr, he remigrated to Germany in 1951. Together they faced the great challenge of establishing political science as a science of democracy and (re)education, which created opportunities to confront and deal with Germany’s past on the one hand and its institutional failures on the other. Besides working through the legacy of the Nazi era, their task was to elaborate on a free and democratic constitutional order.

Upon his return, Fraenkel first became a professor at the Freie Universität Berlin, building up department that would later become the Otto-Suhr-Institute of Political Science. He was also the founder and the first director of the John F. Kennedy Institute for North American Studies (JFKI). Establishing the institute was a dream come true for Fraenkel, who now had the opportunity to build up the new discipline of American studies and foster academic training and research that bridged the traditional borders of university disciplines. The decision to found an interdisciplinary “Amerika-Institut” based on Fraenkel’s vision was made in November 1962 and substantially aided by a Ford Foundation donation. The great impact of the United States on Fraenkel can be clearly seen in his magnum opus Das amerikanische Regierungssystem (1960), an extensive study within the framework of American studies. His first and foremost academic endeavor was to fully understand America in comparison with Germany—a challenge which he approached by describing the American democracy, its constitutional system, and finally by examining the German image of America.

In the context of the Cold War, Ernst Fraenkel’s political reflection and reevaluation of German democracy was increasingly influenced by his concerns about the second German dictatorship, the German Democratic Republic. To him, it was indispensable to forge close relationships with countries in the West. Yet, in the tense political climate of the 1960s, political science was increasingly conceived as a discipline of opposition. As during the Weimar era, Fraenkel was not only a witness to, but also a critical observer of the developing Federal Republic from the Adenauer era up to the student revolt in 1968 and the social-liberal coalition. Because he openly disclosed his pro-Western and pro-American views, he was seen as an opponent by the revolting students. Fraenkel opposed their protests against the Vietnam War because he feared their increasing anti-Americanism could damage the new German democracy. The students considered him as a reactionary who had given up his former socialist beliefs in favor of protecting and promoting conservative principles. By contrast, Fraenkel accused The Socialist German Student League of being fanatical, radical, and ready to use methods like the Sturmabteilung (SA) of the Third Reich. It was, to him, out of the question that universities should be used as the setting for anti-democratic activities. This tension escalated, in part, because of the generation gap and left Fraenkel feeling misunderstood and hurt.

Another major impact of Fraenkel’s American exile experience can be seen in his antiauthoritarian theory of neo-pluralism. Through his examination of American law and its practical transfer into political culture, he was better able to understand American democracy; he observed the ways in which the legitimacy of diverse and freely-clashing interests were acknowledged, and recognized that liberality enables a society’s emancipation. Fraenkel’s empirical-normative theory builds upon the work of the English political scientist Ernest Barkers and was influenced by James Madison’s work. In America, he had the opportunity to view the Continental legal system of Europe, which emerged from Jean-Jacques Rousseau’s tradition, from a distance. Because of its authoritarian nature, Fraenkel believed Europe’s system to be a powerful engine to destroy any democratic society and homogenize its political culture. In this context, Fraenkel introduced his distinctive theory of neo-pluralism by criticizing the deficits of the newly installed democracy in Germany, where ideological pluralism was not permitted and voters were downgraded to opportunists. While the democratic system of government performed well, Fraenkel identified Germany as an autocratic state of mass culture, in which political reality suffered from a lack of politically-engaged citizens and a commitment to democracy. In his book Reformismus und Pluralismus (1973), Fraenkel stated that the general will is shaped a posteriori, and should arise from togetherness and the conflict of individual interests represented by autonomous groups. It is the obligation of the government to facilitate the conditions for the coexistence of different societal interests, guaranteeing that individuals can develop as members of ethnic, religious, or national groups without interference. The balance of different interests evolves from the separation of powers and party competition, which Madison explained as the horizontal and vertical separation of powers. Consequently, American political culture demonstrated to Fraenkel that the inclusion of a multitude of groups in the political decision making process is essential to overcome the crisis of the democratic systems of the twentieth century.

Throughout his postwar academic career, Fraenkel maintained close ties to the United States and became a bridge between the two countries. Thus, in 1954/55 he returned again to the United States to teach as a visiting professor at the University of Colorado Boulder and at the University of North Carolina at Chapel Hill. From 1957 on, his research was supported by theRockefeller Foundation. In 1958/59 he was a visiting professor at the University of California, Berkley and the New School offered him a job, which he turned down. Despite the fact that he had already returned to Germany in 1951, he kept his U.S. citizenship until 1972.

Although his tumultuous verbal feud with the German students left him slightly offended and worried about his legacy, he worked again on the translation of his publication of The Dual State, which was published in German for the first time in 1974. Initially, Fraenkel refused to take part in the book’s revision because he did not want to deal once more with the evil deeds of the Nazi regime. He finished his most well-known work shortly before he died on March 28, 1975 in Berlin. Fraenkel’s personal biography and political thought were heavily intertwined and the historical break of the twentieth century which led to his emigration was arguably the most formative experience of his personal and professional life. In a letter to Otto Suhr’s family, Ernst Fraenkel concluded that he had made a decisive break with his past, and declared that the crucial turning point for his life and academic career was his gradual disengagement from Germany and growth into the American situation. The experience of being persecuted and of being an emigrant fundamentally changed and shaped Fraenkel’s personality, values, and views. His political and personal mission to see Germany among the Western democracies as a nation rooted in human rights by its self-given constitution made him an outspoken and dedicated theoretician and defender of democratic values.