Q. Do you mean to say by that, that 30 January 1933 did not bring about a complete break of the development prior to Hitler?
A. Yes, that is what I would say.
Q. Do you also mean to say by this that the so-called change-over, that is the seizure of power by the National Socialist Party, was legal?
A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the change-over, whether one adheres to the formation of the government on 30 January 1933, or whether one discusses the enabling act, promulgated on 24 March 1933,[142] or how far altogether one wants to extend the events of the change-over. I can only answer conditionally. If one considers only the formation of the government, that is to say the act of entrusting Hitler with the Chancellorship on 30 January 1933, and if by “legal”, one means the purely outward formality, then it cannot be denied that the operation was carried out legally, namely, under Article 53 of the Weimar constitution,[143] according to which the Reich President forms the cabinet, and the Parliament—the Reichstag—only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why the Weimar constitution contains quite rightly article 54[144] which incorporates the parliamentary system by establishing the institution of the vote of nonconfidence and entrusts the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the sole act of the President; side by side with, let us say, the dismissal, with which the countersignature of the Chancellor is purely formal.
In the development of the Weimar constitution, after initial wavering, there evolved the principle that the new Chancellor appointed or signed the dismissal of the old Chancellor and his own appointment, which is really illogical. I don’t think there is any need for me to explain that any further. But as the Weimar constitution in Article 50[145] provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich ministers—at least one—one was compelled to have even the appointment of the new Chancellor countersigned. That means naturally for the new Chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to 30 January—formally the procedure was orderly; a great deal more difficult is the question concerning the Reich law of 24 March 1933, that famous law [the Enabling Act], the validity of which was doubted so much; it is much more difficult to answer if your question refers to that. That law has as its main contents—I can almost say with a little exaggeration—the elimination of the division of powers. Three provisions or groups of provisions of the Weimar constitution are excepted, but for the rest the government could now promulgate laws even if that meant changing the constitution of the Reich; for the normal life of the people, legislators, and supreme administrators are one and the same thing. That is a basic change of the entire structure of the Weimar constitution. And I can say frankly if I, during the first years of the Weimar constitution, as an expert on constitutional law, had been asked whether the Reichstag, even if there was a majority, could not change the constitution under article 76[146]—if the Reichstag would make such decisions, could pass a law which, in effect, eliminates the Reichstag,—if I had been asked such a question I would have said there is nothing about that in article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abandon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar republic, wrote the commentary to the constitution of the German Reich which is the authoritative commentary. Gerhard Anschuetz whose last position was that of professor at Heidelberg, was, I might say, a temple guard of the Weimar constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz’ opinion carried, which was concurred in by all German constitutional lawyers, that there were no limits for article 76, concerning the amendment of the constitution. Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution, could abolish the republic, the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March, one might have legal misgivings, I had something different in mind. I believe if I had been the President of the Reich, and if I had had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich President who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the majority present, that is, the majority which passes the resolution, did not constitute the majority of the Reichstag as elected [by the people] but constituted the majority of a Reichstag that had been curtailed by the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces; but even that doesn’t help and, particularly, it doesn’t help according to Anschuetz. Anschuetz and [other] German experts on constitutional law consistently upheld the view that the assurance of the Reich President, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny. Therefore, we have to say, under objective law there may be misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar constitution, the signature by the Reich President excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the so-called legality of the change-over, even purely formal, is very difficult to answer, but for the rest it seems to me that this is only an argument about words; [actually, it was] a revolution, and it was meant to be a revolution. Hitler even thought it was the only real revolution. And according to its aim and meaning it [i.e., a revolution] cannot be legal; but in any case, if it comes off—that is how it always will be in the world of states—it provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the source of all law.
Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy on the other hand, would you now, from the developments, explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.
A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. Even for many a German, Hitler’s authority is a mystery, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler’s regime. A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler’s regime, but only appeared there particularly clearly. But above all—because otherwise I cannot provide you with the background—I should like to explain that a little further to the Tribunal—above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various schools of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought, as far as I understand it, a great difference which cannot be overestimated. On the continent of Europe, in the course of four centuries, a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a lawyer, “That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but after all, that is the historical reality.” How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning article 102 of the constitution[147] as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote—this is in the commentary of the 14th edition, page 476—“If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations.”
I had to read this out verbatim. Therefore, it was rather difficult for the interpreter because of the position of the verbs.
The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this—and I now have to broach a subject, the effect of which did not affect England or the United States. The state of the European continent came into existence from the fragments of the Corpus Christianum of western Europe. The break of the medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great Florentine; Jean Bodin, the great Frenchman; and as far as Hegel, the great German. As a result, ethical evaluations may be made by the legislator, parliament, or the monarch, but the resolution passed by the monarch or parliament deprives those who are governed by these laws of all right of objection.
May I draw the attention of the Tribunal to one event that occurred under the Weimar constitution. During the first years of the republic it became known among the public that Berlin was thinking of forbidding any revalorization [or revaluation— Aufwertung] by law.[148] The judges of the Reich Supreme Court of Leipzig at that time formed their own association, and that association of judges, in view of that rumor, held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality. There was a storm of indignation among the Reich government. The Reich Minister of Justice protested using very sharp expressions, and the Reich Supreme Court did not carry out its threats. However, in 1927 the Reich Supreme Court in a decision published in volume 118 declared—“The legislator in the autocracy is not bound to any other restrictions but those which he draws for himself from the constitution or from other laws.”