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Mark Tushnet, The Dual State in the United States: The Case of Lynching and Legal Lynchings, 16 L. & Ethics Hum. Rts. 41 (2022).

Abstract: This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940 (roughly). It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that are treated (sociologically) as acceptable by relevant professional communities. Seen through that lens the distinction between the normative state and the prerogative state thins out. The arbitrariness Fraenkel associates with the prerogative state infects the normative state and the prerogative state is pervaded by norms that aren’t mere simulacra of legal norms. The two kinds of state are different in degree rather than in kind—but differences in degree can matter. Part II uses the revised distinction in a preliminary examination of lynch law in the U.S. South. Lynch law was not an example of Fraenkel’s prerogative state; the norms enforced through lynch law might have been popular versions of norms drawn from the prerogative state. And yet “lynch law” was different not only in content from the rules of law formally applicable to all people in the United States but also in the lived experience of those subject to lynch law. Lynch law might not have been arbitrary in the sense that it had no knowable normative content, but, perhaps because the norms were popular rather than legislated or formal, it was substantially vaguer than the formal law and significantly less able to guide the choices made by those subject to it.