Reinhardt Frank, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim, “In as far as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law.”

With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience; it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely “personal” character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicholai Hartmann, Ethics (2d Edition, 1935, pp. 421-422) says for instance, with regard to genuine conflicts of values:

“It is a fateful error to believe that such problems can be solved on principle in theory. There are border-line cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision. A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this—

“To follow the dictates of his conscience to the best of his ability, that is, according to his own live sense of the level of values and accept the consequences.”

No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of penal law is out of the question.

d. Evidence

Testimony
Page
Extracts from the testimony of defendant Karl Brandt[970]
Extract from the testimony of defendant Rose[973]

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[[156]]

EXAMINATION