Joseph Goebbels expressed the same thought even more bluntly in 1934 after the Nazis were in power—

“We were not legal in order to be legal, but in order to rise to power. We rose to power legally in order to gain the possibility of acting illegally.”[15]

Later on in this case, the Tribunal will have offered to it documents which speak at length about the creation of a new, National Socialist system of law. By then, it will be apparent, I believe, that a “National Socialist system of law” is a preposterous contradiction in terms. It never was an objective of the Third Reich to create any system of law. On the contrary, it was its fundamental purpose to tear down every vestige of law in Germany, and to replace it with a mere bureaucracy which would mete out reward and punishment in accordance with the tyrannical ideology and tactical necessities of the dictatorship. The one-time sage of Nazi jurisprudence, the late Dr. Hans Frank, summed this up aptly in 1935 (NG-777, Pros. Ex. 19)—

“National socialism is the point of departure, the content, and the goal of the legal policies of the Third Reich.”[16]

And the defendant Schlegelberger expressed the same thought in 1936 (NG-538, Pros. Ex. 21)—

“Accordingly there can be no doubt that now the moral order and ideology [Weltanschauung], as recognized in the Party program, has to be taken into consideration in the interpretation and application of every norm of the existing law.”[17]

We may now retrace some of the steps which the law lords of the Third Reich took to turn the judicial system into a subservient but effective agent of the regime. Some of these we have already noted. The centralization of the administration of justice in the Reich government, the vesting of over-all authority in the Reich Ministry of Justice, and the creation of extraordinary courts were essential steps in the process. Standing alone, these acts might have been unobjectionable, though the creation of special courts was expressly prohibited by article 105 of the Weimar constitution. But these first moves were but the prelude to a series of deadly thrusts at the vitals of the judicial system. The early history of this organized attack on the fundamentals of law is summarized in the decision of the International Military Tribunal—

“Similarly, the judiciary was subjected to control. Judges were removed from the bench for political or racial reasons. They were spied upon and made subject to the strongest pressure to join the Nazi Party as an alternative to being dismissed. When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken over and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party. Special Courts were set up to try political crimes and only Party members were appointed as judges. Persons were arrested by the SS for political reasons, and detained in prisons and concentration camps; and the judges were without power to intervene in any way. Pardons were granted to members of the Party who had been sentenced by the judges for proved offenses. In 1935, several officials of the Hohenstein concentration camp were convicted of inflicting brutal treatment upon the inmates. High Nazi officials tried to influence the court, and after the officials had been convicted, Hitler pardoned them all. In 1942, ‘judges’ letters’ were sent out to all German judges by the government, instructing them as to the ‘general lines’ that they must follow.”[18]

The destruction of the judicial process continued throughout the era of the Third Reich. The period from the beginning of the new regime in 1933 until the outbreak of the war was characterized by the rise of special tribunals, and the steady decrease of procedural guaranties. After 1939, the war accelerated the conversion of criminal justice into dictatorial administrative procedure until, at the end of the war, all resemblance to legal process had vanished. We turn now to an examination of the particular steps in the process.

a. 1933–1939