Basically, the principle of the division of power is presumably to be maintained. By this principle Montesquieu divided the originally united power of the absolute king into legislative, administrative, and judiciary. The three different forms of expression of state domination were to have equal importance, counterbalance each other, and so aid in controlling one another. This system of the division of power characterizes the modern constitutional state. Straining the point somewhat, one might define the field of activities and competency of the three different forms of expression of sovereign authority by stating that the legislature has to deal with the future, the administration with the present, and the judiciary with the past. The legislature sets the standards to which life is to conform. From time to time these must be changed in accordance with the changed way of living. But until then they must remain valid.
Insofar as a mere establishment of norms of life is not sufficient it will be shaped, as the case arises, by the administration. Administration itself is bound by certain norms, but on principle is free to move within the lawful bounds of its good judgment, so as to be able to respond to the daily changing needs. Just as for the law-making politician, the idea of serving a purpose is its main consideration.
The judge, on the other hand, may not decide according to the usefulness, but should decide according to the law. In general, it is not his task to shape, but to judge. He has to pass judgment on actions after they have been committed, and examine conditions after they have arisen in the light of whether and to what extent they corresponded to the standards, or what juridical consequences they have brought about. Therefore, as a matter of principle, his view is directed toward the past. In the life of the state, which is continuously inspired by politicians looking to the future, he is the restraining counterpole.
Although bound by the laws decreed by the politician, he is not merely an executive organ. On the contrary, he should control the legislator by re-examining the laws with regard to their conformity to the constitution. This, logically, ought to include the examination of whether the principle of the division of power was maintained, because just as the judge may judge only de lege lata and must leave the decisions de lege ferenda to the legislator, the latter in turn is obliged to refrain from interfering with the former’s competency by making laws with retroactive power.
The criticism of the administration of justice by the National Socialist State is mainly based on its having abandoned the division of power. By putting at the top the political Leadership Principle, the Führerprinzip, it interfered dictatorially with the competency of the judges. By means of the Police, that is, the administration, it arrested and imprisoned people without judicial warrant of arrest, simply for reasons of political prevention, and even rearrested those who had been acquitted by the judge and set free. On the other hand, for political reasons convicted criminals were withdrawn from the hands of justice. Thereby, quite naturally, the sureness and clarity of the law were seriously endangered.
But not even this National Socialist State dared renounce outright the principle nulla poena sine lege praevia. In its police measures it dispensed with their justification by the judge exactly as today the execution of denazification sentences was justly not placed under the jurisdiction of the Ministry of Justice by the Regional Council of the American Zone, on the grounds of being “alien to justice.” By three laws, however, the National Socialist State decreed an increase in the scope of punishment previously in force with retroactive validity, but they did not provide penalties for acts hitherto unpunishable. More particularly, this was not brought about by the fact that by Article 2a of the Criminal Code the possibility of criminal analogy was created, because by this article a threat of punishment only was created, although not retroactively; and everybody was enabled to conform.
A certain degree of protection against arbitrary judgments and the splitting-up of law lay in the fact that the National Socialist State was based on a specific ideology by which the judge was bound. Concerning the close connection between finding of justice and ideology the Swiss professor of law, Hans Fehr, of Berne, already in 1927 wrote in his book, Recht und Wirklichkeit; Einblick in Werden und Vergehen der Rechtsformen: “Without ideology law floats in a vacuum.... Whoever has no ideology can have no sense of right and wrong...”
Fehr showed that every judge, as far as the law allows him latitude, judges individually according to his ideology. In an era of liberal freedom of ideology this naturally brought forth a danger for the uniformity and sureness of the law. Therefore the liberal state in particular had to make its criminal court judges conform closely to the codified substance in each case and forbid them to employ analogies. Fehr already pointed out the danger inherent in such judgment based on codified substance, tending to give undue preponderance to the act over the perpetrator. Following the lines of a dynamic jurisprudence, the liberal school of legal conception, he therefore advocated an extension of the judge’s authority to create law.
In that sense, as will be understood from the above, the nonliberal states directed by a definite ideology had taken the lead. The Soviet Union, after the Marxists had already long ago rejected the liberal, allegedly objective, jurisdiction as “bourgeois class justice,” was the first to introduce a proletarian class justice which deliberately abandoned the idea of the equality of all before the law. The National Socialists, according to their racial ideology, followed suit by forming the thesis, “Right is what serves the people, wrong is what injures it.” Inside such a solid ideological frame the dangers of criminal analogy, which were still further narrowed down by Article 2a of the Criminal Code, dwindled considerably.
In contrast to this, no fixed ideological base as a foundation for the Charter is discernible. Since its signatories stand on very different ideological ground we will have to proceed, as in the international law valid hitherto, from the liberal idea of freedom of ideology. Therefore the legal thesis nulla poena sine lege should be especially sacred to it. This is also proven by the fact that the Control Council for Germany, by abolishing the criminal analogy of Article 2a of the Criminal Code, brought the above maxim back again to all Germans most emphatically.