In indirect democracies the resolutions of a congress, a national assembly, or a parliament may have the same force.
In the partly direct, partly indirect democracy of the Weimar Constitution of the German Reich the laws resolved by a majority of the Reichstag large enough to modify the constitution and duly promulgated under all circumstances were binding upon all functionaries, including the independent courts of law, even though the legislator—willingly or unwillingly—might have violated rules not imposed by the state but by the Church or by the community of states. In the latter case the Reich would have been guilty of an international offense, since it would have failed to see to it that its legislation was in accordance with international law. It would, therefore, have been responsible under the international regulations regarding reparation for international offenses. But until the law concerned had been eliminated in accordance with the rules of German constitutional law, all officials of the hierarchy would have had to obey it. No functionary would have had the right, let alone the duty, to examine its legally binding nature with the aim of obeying or refusing to obey it, depending on the result of this examination.
Things are no different in any other state in the world. It never has been and never can be different. Every state has had the experience of seeing its ultimate orders, its supreme orders, which must be binding on the hierarchy if the authority of the state is to subsist at all, on occasion coming into conflict with rules not imposed by the state—to divine law, to natural law, and to the laws of reason. Good governments take pains to avoid such conflicts. To the great sorrow—indeed, to the despair—of many Germans, Hitler frequently brought about such conflicts. If only for this reason, his way of governing was not a good one, even though it was for several years successful in some spheres.
One thing however must be said straight away: these conflicts never affected the entire nation or the entire hierarchy—at least not immediately—but always merely groups of the nation or individual offices of the hierarchy. It was only some of the people concerned who were fundamentally affected, the bulk being only superficially involved—not to mention those conflicts that remained unknown to the overwhelming majority of the people and of the hierarchy, those orders, therefore, by which Hitler not only showed himself to be inhuman in individual instances but simply put himself outside the pale of what is human. Here is a purely academic question: Would Hitler’s power have taken such deep root, would it have maintained itself, if these inhumanities had become known to wider sections of the people and of the hierarchy? There can be no answer: they did not.
Now in a state in which the entire power to make final decisions is concentrated in the hands of a single individual, the orders of this one man are absolutely binding on the members of the hierarchy. This individual is their sovereign, their legibus solutus, as was first formulated—as far as I can see—by French political science with as much logic as eloquence.
After all, the world is not faced by such a phenomenon for the first time. In former times it may even have appeared to be normal. In the modern world, a world of constitutions based on the separation of powers under the supervision of the people, absolute monocracy does not seem to be proper in principle. And though this may not yet be the case today, one day the world will know that the vast majority of intelligent Germans did not think any differently on this matter from the majority of intelligent people of other nations in and outside Europe.
Such absolutely monocratic constitutions can nevertheless come about as the result of events which no individual can grasp in their entirety, much less control at will.
This is what happened in Germany from the beginning of 1933 onward. This is what happened gradually, stage by stage, to the parliamentary Weimar Republic, which under Hindenburg was changed into a presidential republic, in a process which partly furthered the development by acts of state which stressed legal forms and which can be read in state documents, but partly simply formed the rules by accepted custom. The Reich law of 24 March 1933, by which the institution of Reich Government Laws was created, whereby the separation of powers in the sense in which it had been customary was, in practice, eliminated, was, according to the transcript of the Reichstag session, passed with a majority sufficient for altering the constitution. Doubts about the legality of the law have nevertheless been raised on the grounds that a section of the deputies elected had been prevented from attending the session by the police, while another section of the deputies who were present had been intimidated, so that only an apparent majority sufficient for altering the constitution had passed the law. It has even been said that no Reichstag, not even if everybody had been present and all of them had voted, could have abolished the fundamental constitutional principle of the separation of powers, since no constitution could legalize its suicide. We need not go into this. The institution of government laws became so firmly rooted as a result of undisputed practice that only a formal jurisprudence entirely cut off from the realities of life could have attempted to play off paragraphs against life and to ignore the constitutional change which had taken place. And for the same reason one’s arguments are faulty if one chooses to ignore how the institution of government laws, that is, cabinet law, was later changed by custom into one of several forms in which the Führer legislated. At the base of every state order, as of any order whatsoever, there lie habit and custom. From the time when Hitler became head of the State, practice quickly resulted in Hitler heading both the hierarchy and the whole people as the undisputed and indisputable possessor of all competency. The result of the development was, at any rate, that Hitler became the supreme legislator as well as the supreme author of individual orders.
He gained this position to some extent under the impression of the surprising successes—or what were considered successes—in Germany and abroad, especially during the course of the past war. Perhaps the German people, although with great differences between North and South, West and East, particularly easily falls a prey to actual power, particularly easily obeys by orders, particularly well conforms to the idea of a superior. Thus the whole process may have been rendered easier.
Finally, the only thing that was not quite clear was Hitler’s relationship to the judiciary. For, even in Hitler Germany, it was not possible to exterminate the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the bulk of the people in their everyday life. Up to the top group of Party officials—this was shown by some of the speeches by the Reich Leader of jurists, the Defendant Dr. Frank, as quoted here—there showed resistance, which, it is true, was not very effective, when justice in civil and ordinary criminal cases was equally to be subjected to the sic volo sic jubeo of one man. But apart from the judiciary, which in the end also was beginning to succumb, absolute monocracy was complete. The Reichstag’s pompous declaration about Hitler’s legal position, dated 26 April 1942,[[56a]] was actually only the statement of what had become a fact long before. The Führer’s orders constituted law already a considerable time before this second World War.