This remarkable synthesis of leading and dominating found its maximum expression in the person of Hitler himself, in his acts of leadership, for instance, in his speeches, and in his commands. Hitler’s acts of leadership and commanding became the motive power of the German political life of that time. Above all, this phenomenon must be taken into correct account. It is of absolutely decisive importance in judging the enormous mass of facts which has been produced here. With all due caution, which is natural to men accustomed to think along scientific lines and imbues them with an almost unconquerable mistrust of any attempt to comprehend and evaluate events which have happened so recently, one is perhaps entitled to vouchsafe this assertion: In the course of the years Hitler accorded the act of command an increasingly favored place to the detriment of acts of leadership and finally brought it so much to the fore that commands, not the act of leadership, became the all-decisive factor. Hitler, the man of the people, became more and more the dictator. The speeches in which he repeated himself ad nauseam, even for his most willing followers, and shrieked out, to the irritation even of the most faithful disciples, became rarer, while the legislative machine worked faster and faster. A later age will perhaps realize to what extent the great change in the attitude of the German people toward Hitler, which was beginning to show even before the war, was the cause or effect of this modification.
Whereas on a superficial question, that is, the question as to how he wished to be designated, Hitler urged not to be called “Führer and Reich Chancellor” any longer, but only “Führer,” the way in which the State was being governed was taking the exactly opposite path; leadership disappeared more and more, and there remained naked domination. The Führer’s orders became the central element of the German state edifice.
In the public hierarchy, this development was attended by an increase rather than a decrease in Hitler’s power. The great majority of German civil servants and officers had seen nothing behind the organized leadership but a machinery of domination invested with a new label and, if possible, an even more bureaucratic nature functioning side by side with the inherited state machinery. When Hitler’s orders became the Alpha and Omega, they felt themselves, so to speak, returned to the old familiar path. The queer and puzzling apparition had gone.
They were back in their world of subordination. Nevertheless, this development had given the Führer’s orders a special aura of sanctity for them too; there was no contradicting the Führer’s orders. One could perhaps raise objections; but if the Führer abided by his order, the matter was decided. His orders were something quite different from the orders of any official within the hierarchy under him.
Here we have the fundamental question in this Trial: What position did Hitler’s orders occupy in the general order of Germany? Did they belong to the type of orders which were disallowed by the Charter of this Court as grounds for the exclusion of punishment?
It was perhaps harder for a lawyer who grew up in the habits of the state founded on law than for other people to witness the slow and then ever more rapid disintegration of that foundation of law supporting the state; he never came to feel at home in the new order and always remained half outside. Yet for that very reason he probably knows better than anyone else the peculiarities of this new order, and he may attempt to make them comprehensible.
State orders, whether they lay down law or decide individual cases, can always be measured not only against the existing written and unwritten law of the state concerned but also against the rules of international law, morality, and religion. Someone, even if only the conscience of the person giving the orders, will always ask whether the person giving the order did not perhaps order something which he had no right to order or whether he may not have formed and published his order by an inadmissible procedure. Now an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its civil servants and officers, the right—or even impose on them the duty—to examine at any time any order which demands obedience from them, to determine whether it is lawful and to decide accordingly whether to obey or refuse?
No form of rule which has appeared in history so far has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right, and they were not granted it without limits. Such was the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic, and it is again the case today under the occupation rule of the four great powers over Germany.
Insofar as no such right of examination is granted to members of the hierarchy, orders are binding upon them. All constitutional law, including that of modern states, provides for acts of state which must be respected by the authorities, even when defective. Certain acts constituting rules, certain decisions on individual cases which have acquired legal force, are held to be valid even when the person giving the order has exceeded his competency or made a mistake in form.
If only because the process of referring to a still superior order finally comes to an end, there must under every government exist orders that are binding on the members of the hierarchy under all circumstances, and therefore represent law to the officials concerned, even though outsiders may find that they are defective as regards content or form when measured against the previous laws of the state concerned or against rules applying outside the state. For instance, in direct democracies, an order given as the result of a plebiscite of the nation is a fully valid rule or an absolutely binding decree. Rousseau knew how much the volonté de tous can be in contradiction to what is right, but he did not fail to appreciate that orders by volonté de tous are binding.