Conflict between Behemoth and The Dual State during the Gaza War

, and ASMedia

2025 August 31 . 5:17 AM

2 min read

Conflict between Behemoth and The Dual State during the Gaza War

In the aftermath of the Gaza War, which erupted in October 2023, scholars have turned to two influential accounts of Nazi Germany's legal system to shed light on Israel's own legal and military governance during the conflict. Ernst Fraenkel's "The Dual State" (1941) and Franz Neumann's "Behemoth" (1942) offer distinct perspectives on the nature of legal authority and suppression under National Socialism, and their historical accuracy is still a subject of debate.

Franz Neumann's Behemoth portrays the Nazi state as lawless and chaotic, lacking a consistent legal framework. In contrast, Ernst Fraenkel's The Dual State argues that there was a bifurcated legal order with a "normative state" governed by regular law coexisting alongside a "prerogative state" where arbitrary power and secret police operated outside the law.

Recent scholarly discussion uses this dual framework to analyze Israel’s legal and military governance amid the Gaza War. The controversy between these accounts is relevant in assessing how Israel’s rule of law functions in wartime, especially given the capture and trial of Hamas fighters and the tensions between criminal prosecution and military/security prerogatives. Israeli international law scholars have raised concerns on whether Israel’s conduct respects international humanitarian law, highlighting the dilemma of legal accountability versus state security imperatives.

The Behemoth narrative emphasizes the breakdown of legal norms under the Nazis, a perspective that some argue reflects the tension between rule of law and exceptional security measures in wartime Israel. The Dual State account, on the other hand, focuses on the coexistence of legal regimes controlling different spheres, which may be more applicable to understanding Israel's adherence to international law while exercising strong security prerogatives.

The historical debate underscores the mistaken notion that stronger legal institutions or lawyers alone could have prevented democratic collapse in interwar Europe. This cautionary insight informs the critique of Israel’s legal system’s complex balancing act during the Gaza War, showing that legal frameworks can coexist uneasily with extralegal or exceptional state powers in moments of crisis.

In sum, both the Behemoth and Dual State accounts provide valuable insights for understanding legal authority and suppression under extreme conditions, both historically under Nazism and contemporaneously in conflict settings like Gaza. This analytical juxtaposition highlights enduring tensions between law, politics, and security under such conditions.