THE DESTRUCTION OF LAW AND JUSTICE IN GERMANY

I turn now to an examination of the means by which the defendants and their colleagues seized control of Germany’s judicial machinery and turned it into a fearsome weapon for the commission of the crimes charged in the indictment.

The destruction of law in Germany was, of course, part and parcel of the establishment of the Third Reich dictatorship. Initially, the dictatorship arose out of the decrees in the early part of 1933 which suspended the constitutional guaranties of freedom and vested Hitler’s cabinet with legislative power, unrestrained by constitutional limitations. These early decrees put an end to law as we know it in a democracy.

But much more had to be accomplished in order to achieve a dictatorship of the proportions envisaged by the authors of the Third Reich. Freedom of the ballot had to be suppressed so that a false veneer of electoral approval could be spread over the Nazi edifice. The civil service had to be purged of dissident officials. An ubiquitous and ruthless police system had to be created. A multitude of other measures were necessary. But, above all, law and justice had to be utterly stamped out.

At first blush, the reason for this may not appear. The Nazi cabinet could decree any law it wanted to with the flourish of a pen. The courts, unless they were bold enough to deny the very basis of Hitler’s authority, which they did not do, were bound to punish violations of these laws. Was this not enough for even Hitler’s purposes?

The answer is twofold. Particularly in the early years of the Third Reich, Hitler’s government pursued aims and employed methods which it did not, at that time, see fit to authorize by formal, public legislation. The regime was not yet strong enough, externally or internally, to face the storm of disapproval which such legislation would have encountered. The Nazi government thought it wise to pursue these aims and employ these methods outside of, and often in violation of, the letter and spirit of the law. And it did not wish to be embarrassed or obstructed by an independent judiciary respectful only to the law. The outcome of the Reichstag fire trial, for example, was highly embarrassing and promptly bore sinister fruit in the creation of the People’s Court.

But there was another and much more fundamental reason. The ideology of the Third Reich was totally incompatible with the spirit of the law. It could not live under law, and the law could not live under it. To take but one example: even under stringent anti-Jewish legislation, there were bound to be situations where an overgreedy German in a civil suit or an overzealous police official in a criminal case had erroneously haled a Jew into court. In other words, even under Nazi legislation, there were bound to be cases when the Jew was legally right. Yet, it was unthinkable that a German court should exalt the Jew and discredit the German with a decision in favor of the Jew. Such perplexing problems could be dealt with only by courts which were not true courts at all, and which could be trusted to suppress the law and to render an ideological judgment or, as was done later, to declare the Jew to be an animal beyond the judicial pale entirely, who could not, any more than a wrongfully beaten dog, ask judicial intervention or protection.

This sort of problem was far more delicate in the case of the Poles, whom the Nazis chose to regard as less than human but more than Jewish. Later on in this case, we will, I think, derive some macabre humor from the documentary spectacle which some of these defendants made of themselves in vainly wrestling with the insoluble problem of how to achieve a certain amount of legal order and stability in occupied Poland, without at the same time giving the Poles any true law on which they could rely.

In short, the very idea of “law” was inimical to the ideology of the Third Reich, and it is not surprising that its principal authors recognized this fact at a very early date. In 1930, Hitler himself declared with reference to a court decision against certain Nazis—

“We can assure the judges that, if national socialism assumes power, they will be fired without any pension.”[14]