Now, I ask to be permitted to speak about a second point which concerns only Germany, at least to that extent. It is easy to forget that the German people for 33 years have never had really normal conditions. If one looks at that from the human point of view, it means that about 50 age-groups of German people—that is more than two-thirds—50 age-groups of people have never seen normal conditions; that is, all the people who were born after 1914, and those who, before 1914, did not have any conscious experiences. For all these people, life—and that was the normal thing for them—was a continuous change from open to latent crisis. One was always exposed to danger and always with a longing for stable conditions. The consequence is that for most Germans, order, which deserves that name, is something hard to imagine. To the German people order has become to mean something transitory, something unstable, something upon which one cannot depend, and doubtless it did not contribute to the stabilization of legal thought that, beginning with the time of the Weimar republic the machinery of legislation was running incredibly fast. I would, indeed, desire for the judges [of this Court] to see the maze of decrees and laws published and showered upon the German people since 1919. Most of those were laws or paragraphs of short existence. We had real inflation of legislation, as far as I know, in history without example at any other period. And that was not only so during the Weimar era, it became worse indeed during the period of the Third Reich. Before Hitler came [to power] he turned with strong criticism against that positive manufacturing of laws. In his opinion, only the “sound sentiment of the people” should find its inclination in laws. But when he was in power, the machinery, if this was possible, then was in even higher gear.
I believe that I do not have to credit it to my own inefficiency but I have to believe that no German jurist can say anything else of himself, but, none of us were in a position to know all the headlines of all the laws and decrees that have been passed. With things as they were, one has to understand that a large portion of the German nation, many jurists among them, became tired and apathetic toward authority, and skeptical. And on the other hand it could not be avoided that many impulsive individuals revolted, wanted to take action, wanted to do something about it, wanted to come to a decision, to a clarification, to a simplification, to find a way to see through all that.
In our era—at least one can say that for Europe—the political disease of fanaticism and doctrinism has broken out; tolerance became more and more rare; each single technical question was tainted with the question of religious allegiance. Under these circumstances, one can easily obtain a picture of the chaotic condition of legal thinking; small wonder that a state, to see to it that laws once decreed have to be carried out by the authorities, demanded particular emphasis because otherwise not even the minimum of order could be guaranteed which was at most possible. Particularly because the entire situation, the entire atmosphere was so unstable. The essence that “an order is an order” had to become the last refuge of those actually in power.
And now, a last part of it. Inflicted against this background of all that we find in the constitution which, on paper, perhaps structurally is the most sympathetic, the most logical democratic constitution of the world, with a tremendous, carefully thought-out system of checks and balances, safety valves in order to assure that the individual citizen would be the one to have its full advantage. But that constitution was worked through elaborately, and I say openly, that my determination to study constitutional law was in part based on that constitution which enthused me as a young man; this constitution, at the same time, was very complicated in its structure, its structural power and in legislative procedure.
With the permission of the Tribunal I shall try to explain that life itself demanded to have these matters simplified—rather less artistry but more efficacy. With that I believe, in all brevity, to have said something of that which is absolutely necessary to know if one wants to understand the essence of the Weimar constitution and its development which, long before Hitler, had led to a situation which does not permit to recognize any longer the situation of 1919.
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In German we call a law which was brought about by the legislative authority, a law in the formal sense. And the basic thought for all, which is to be found in all European constitutions, is this. If the government wants to, let us say, increase taxation, then that means it wants some acts of legislation which authorize the authorities, or the various agencies, to interfere with property. The government, therefore, wants a law in the material sense; therefore it must have a law in the procedural sense or in the formal sense, through legislation. That is what we call the principle of the necessity of the law, the fact that a law is required. Where this is brought about, we have a division of power. And if it were brought about—and it has never actually been carried out—then this is the way it would have to come about. The legislative body then would have to make all substantive laws, but it would do nothing but just that.
Both these cases do not apply. Parliaments, time and again, are given the privilege or the right to come to resolutions or decisions which have different content, for example, decisions on budget. These decisions on budget are not acts of legislation in the sense of setting standards. In German constitutional law it is definitely prohibited to include into the budgets acts of legislation or standards in that sense. The Parliament has a part in the forming of the cabinet. That is one thing. The other—and this is what we need—is the following. It may happen that the government is authorized to enact legislation by virtue of the constitution itself, or by virtue of later laws passed by the parliament. In German one calls these acts of rule making [Akte der Normsetzung] of the government, that is of the executive—which have a legal maxim as content—legal decrees [Rechtsverordnungen]. “Legal” on account of their content, and “decrees” on account of the method.
This institution, which we find in every European state, was the starting-point for the further development and the paving of the way of the orders by Hitler, because in the Weimar constitution there is a law for the government to decree laws, the utilization, or I should say the exploitation of, which led to the fact that since the middle of 1930 the normal legislative body in Germany was really the government. That is the famous provision of article 48, paragraph 2. As a rule, legal decrees on the basis of this article are called dictatorial decrees, but also apart from that during the Weimar era, much authority was received for the government to issue decrees. In countless laws the Reichstag empowered the government, in order to carry out a law, or in some cases in order to amend a law or repeal a law, to issue legal decrees.
However, not only in the Reich do we find this institution or this instrument of legal decrees, but also in the German states, the German Laender. In the constitution one always finds a [provision concerning the] right to issue emergency decrees (Notverordnungsrecht) and the legislatures of the various states frequently authorize the [state] government to issue decrees in regard to substantive law.