The only difficulty is represented by the so-called secret laws, although I can’t quite see where the difficulties are when you look at it properly; that a law which is kept secret before the people whom it concerns cannot bind those people is obvious. That is not because of some particular legal system but that is because of the very nature of an order. Nobody can be given an order if he doesn’t know of the order and if he is not meant to have knowledge of that order. But one must not forget that if Hitler passed a secret law, that as an official directive it was binding for those persons to whom it was made known. Then it was not just a legal norm, but it was an official instruction. As for the citizen, that amounted to the same in effect. If I may use an expression from Germanic law, these various forms by which Hitler announced his will were only different as far as the number of people in his entourage were concerned.
Much more difficult than that question about the form is the question about the restrictions on those contents to which Hitler was subject as a legislator. According to the valid order, limitations in the matter of the contents existed also for Hitler. Already last year, before the International Military Tribunal, I stated clearly that naturally for Hitler too, the limitations of ethics did apply. As to how he himself thought about such matters, I don’t know. I never met him, and I would not like to rely on hearsay; but that he knew that others believed him bound by a moral restriction, that is quite evident from the fact that again and again, be it in preambles to the law, be it by the rest of the propaganda machinery, he formulated moral justifications. Whether that was in accordance with his own real ideas, that question may be left open.
But I have already told the Tribunal that these restrictions, as moral restrictions which are no doubt for a great man the most difficult and the most important restrictions, in the conception of the European state on legal matters, are no legal restrictions. The absolute state of the continent passed on that conception to its parliamentary successor.
A little while ago, I had an occasion to show, by the example of Anschuetz, that that remained so until the latest era, until the time of the extreme democratic era of the Weimar republic. If one does regret that or not does not matter here. I simply have to describe what actually happened. If now, in the European meaning, one asks about legal restrictions—and first of all one asks about restrictions of the German law—one will have to say that restrictions under German law did not exist for Hitler. He was legibus solutus in the same meaning in which Louis XIV claimed that for himself in France. Anybody who said something different expresses a wish that does not describe the actual legal facts.
On the other hand, certainly there were legal restrictions for Hitler under international law. He, as the head of the State, was the representative of the German Reich with foreign countries. After the development of affairs, he had to represent the German Reich without the restrictions which the Reich President still had. Hitler alone concluded the treaties and terminated them. He alone concluded alliances and could renounce them. He was bound by international law. Therefore, he could commit acts violating international law. He could issue orders violating international law to the Germans.
Now we are confronted with the most difficult problem: What were the consequences of the violation of international law by an act or an instruction by Hitler? The nonjurists will probably say that the order did not exist. But every jurist knows everywhere in the world that matters for the state, for every state, are not so simple. It is not true that there is even one state in the world which would say, “Every wrong act of state is not an act of state at all,” but every government system had inherent in itself, in varying form, a second order so to speak—a kind of self-purification system—a system concerned with finding out whether faulty acts of state are void or valid or are only partly valid. Every state commits faulty acts—acts of which everybody knows that they are not in order and knows it at a certain time. Acts which all the same are maintained, merely because during a legal procedure the end has to come one day.
In the Germany of the Weimar republic, for example, this is what happened. When the Reichstag—I just showed it by the example of Anschuetz—had passed a bill pursuant to article 76, that is, with a majority which could change the constitution, that law, if it had been properly promulgated, was binding for every official agency, even, for example, if it did not comply with an obligation of the Reich under international law.
In this commentary—would you kindly wait a moment—it’s a long time since I looked at it last, but I think I can remember where it is. [Reading] Anschuetz says in his commentary on article 10, under figure 7, “International law too, places an obligation on the German judge within the meaning of article 102 and according to article 4, but only insofar as it is generally recognized; in particular, also recognized by the German Reich and does not contradict the Reich laws. Whether that is the case, that the judge has to examine but he does not have to examine Reich laws, for the fact whether they are or are not in accordance with international law, and even if they don’t pass this examination, he cannot deny their application.” That means if the Reichstag, let us say, with a majority that can change the constitution had passed a law which was contradicting international law, that law was binding for all German official agencies. The Reich had to act as a sovereign State under the international law governing offenses against international law.
I return to Hitler. What applied to the democratic set-up applied all the more to the set-up under a “leader,” and everybody knows that who knew about the conditions surrounding Hitler’s decisions. If Hitler issued an order which was faulty from the legal point of view, that did not give the German official agencies any reason to refuse obedience, for in every state there has to be an authority beyond whom there is no appeal.
In the case of Hitler something else, something special applies. He who sees things differently and believes that the German official agencies were not merely entitled but perhaps even under an obligation to examine Hitler’s orders as to their legality not from the scientific point of view, but merely with the practical purpose of possibly refusing obedience, claims no more, no less than that Germany had no dictatorship at all. Then it would not be comprehensible what was the sense of a fight of the whole world against that regime.