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The historic development of the German judiciary is in short the following:
At the same time at which the Roman law, which in no way whatever was connected with the German national consciousness, was introduced in Germany (15th century), the freely elected German people’s judge was replaced by the civil servant, the professional judge. He studied at first at Italian universities, and later—up to the present time—his method of thought was influenced by legal reasoning in accordance with Roman law. Originally he, though an alien, was nevertheless, in his capacity as the highest official of the individual sovereigns, an authority in the country; thus, 19th century liberalism, with its hypertrophy of laws, its plethora of courts, its wild pursuit of litigation, and its juridical thinking, led to a steady increase in the number of judges, and indeed to a debasing, vulgarization, and “bureaucratizing” of the judges. In a liberal state these judges became independent simultaneously in the sense of a complete detachment from people and state. The authority of the judge can be determined by two entirely different means: Once by granting him a superior position and by letting only few qualified men with a strong personality become judges—then the authority and the so-called independence will as a matter of course come out to a certain extent as a by-product—or else the judge’s position will be formally converted under severe stress into a bureaucratic civil service position in which he will attempt to carry through his conception of law by being granted independence through legal guaranty. Prussia, and with her the rest of the German states, consequently the second German Reich, took the latter way.
National socialism will have to proceed on the first path. Because the nature of national socialism is in direct contrast to this degeneration of the old German, nonbureaucratic people’s judge which occurred historically through foreign influence. National socialism will revive the concept of German judge as prototype the same as it created the concepts of Fuehrer, followers, folk-community, honor, loyalty, farmer, soil. It will also have to clear the concept of German judge as prototype of human society from all that is foreign to him, all that has stuck to him in the course of the developments of the last centuries, and ask itself the question: What does a German mind understand by the term “judge”?
According to the concept which every German has of a German community the judge is a fundamental type of human life. Just like the farmer, the soldier, and the various types of trade, the judge too belongs to every community developed beyond the most primitive state. The characteristics of the prototype of judge are—
1. That he is independent and not confined to directions. A judge who has to ask someone else for the sentence is just as much a caricature as a farmer without a plough and a soldier without a weapon. Upon the fact that the judge can use his own discretion is founded the magic of the word “judge.”
2. And a second item is in our description of a German community. The judge has a strong inner authority. He is the interpreter of law who is superior to all other servants of the state in knowledge, experience, and humanity. That the German people have a fine feeling for a strong, responsible, independent judge for the decision of its interests, can be seen among other things from the following: In spite of all judiciary crises and in spite of every reproach against the judges and their decisions, national socialism has never called: Dismiss the judges, we do not wish or require judges any longer! The discontented have always turned only against the present ones and have demanded better. Neither the laborer nor the farmer, neither the businessman, nor the tradesman has ever voiced the desire to appoint for the settlement of their arguments in place of a judge an official who is bound by instructions. However, something entirely different has occurred, with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as “judge” over their fate in general, but also as “supreme magistrate and judge.” The mail received in the Fuehrer’s office in one day would prove this. No wonder, that next to this man, the German bureaucratic judge who represents so little of long established judiciary grandeur had to lose further authority. The special interest we have in this election of the Fuehrer to supreme judge in the united Reich is the acknowledgement of the true judge. This does not infer a renunciation of the concept of the judges itself, as is sometimes concluded, but it does infer a renunciation of the bureaucratic judge. The spontaneous recognition of the Fuehrer as supreme judge of the German people is essentially due to the fact that the Fuehrer wholly independent, separate from any influence or person, not supported by any machine of state but solely by the loyalty of the people fights for the rights of the German people within and without its borders, that is, all qualities which personify a true judge.
3. And thirdly, there will be only one judge in our community. Just imagine! There is a judge on every corner of a market place which we see before us. One feels that 3 of them are too many, while there may safely be 4 tailors, even 40. That they might not have enough work would not fundamentally disturb our imagination. But 4 judges. The symbol that there is only one right, only one justice as presented so clearly in the single judge, would be obliterated. One would begin to compare as in the case of 4 stores—where do I get better right? The authority of the judgment suffers if more judges than needed are present.
Practical considerations also make a radical reduction of the number of judges imperative. During the next decades Germany simply will not have enough young students who have the requirements for the profession of a judge, who have the inclination and aptitude to become a lawyer, and especially a judge, in such an active period. The thorough laying off of personnel which must take place in the entire German administration after the war is even more urgent and justified in the case of judges, as this reduction is in line with the essentials of judges, they being the representatives of the one law and the one justice.
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