Kathryn Hendley. “Legal Dualism as a Framework for Analyzing the Role of Law Under Authoritarianism.” Annual Review of Law and Social Science, vol. 18, no. 1 (2022): 211-226.
This article reexamines Ernst Fraenkel’s concept of the dual state, proposing the idea of legal dualism as a useful framework for understanding law under authoritarianism. Legal dualism captures how law in these regimes functions inconsistently—meaningfully applied in some cases while politically manipulated in others. The article critiques existing social science approaches for overemphasizing authoritarian leaders’ control over courts, often overlooking how ordinary legal disputes are managed. By contrast, legal dualism accounts for the coexistence of routine legal order alongside politicized legal repression. This perspective is especially relevant for understanding how legal professionals operate in backsliding democracies, where they must navigate both functional and arbitrary legal environments. It underscores the complexity of authoritarian legal systems and the ambiguous space within which lawyers pursue justice.