Courts in Germany - page 1

IN 1942, AT ABOUT the same time the United States Supreme Court was writing "of the duty which rests on the courts, in time of war as well as in time of peace, to preserve un¬ impaired the constitutional safeguards of civil liberty," Dr. Joseph Goebbels undertook to instruct the judges of the Nazi People's Court in the elements of jurisprudence. "In war- ne," he explained, "it is not a matter whether a judgment is just or un¬ just but whether the decision is ex¬ pedient." Furthermore, "The idea that the judge must be convinced of the defendant's guilt is to be discarded completely. . . One must proceed not from the law but from the resolution that the man must be wiped out." These two quotations are more than capsule commentaries on democratic and totalitarian theories of law; they also illustrate the relative positions of the judiciary in the two countries. The reader who can visualize a Ger¬ man court that would talk back to Dr. Goebbels will have no trouble imagining a situation in which an American cabinet member would lecture the Supreme Court on its re¬ sponsibilities. The odds on either pos- ibility are roughly the same. In -America the judge speaks ex cathedra (by virtue of his office) and as the final authority. In Nazi Germany he existed principally as an administra¬ tive appendage of the executive branch of government. Purely on the theoretical side, it might be argued that Germany was at war and that the Minister of Prop¬ aganda and Public Enlightenment was justified in demanding some abridg¬ ment of civil liberties in the interest of national security. But America also was at war and, paradoxically, more than ever concerned over individual rights. In the summer of 1942 the By M. R. Weightman Reports Officer, Legal Division , OMGUS Wehrmacht was riding high in Russia, and our North African invasion was still around the corner. The German national existence seemed in no im¬ mediate peril. HE FACT IS, of course, that Goeb¬ bels' excursion into legal theory Justice as meted out during the Nazi regime is described in The first of two articles on Courts in Germany. The second article, dealing with Military Government's efforts to reform and rebuild the courts and the administration of justice since 1945, will appear in issue No. 135 of the Information Bulletin. was neither a breaking of new ground nor an isolated act. It was just one incident in a series which had begun many years before. Hitler's explana¬ tion of his conduct in suppressing the Roehm Putsch of 1934 was another link in the same chain. It is remark¬ able for its candor and for the fact that it established as a matter of public record the official attitude of the Nazi Party toward law and the judiciary: "Whenever someone re¬ proaches me with not having used the ordinary courts, I can only say to him: 'At that hour I was responsible for the fate of the German nation and hence the Supreme Law Lord (Ober- ster Gerichtsherr) of the German people.' " An understanding of how this degradation of the judicial func¬ tion was achieved and what it meant Gaimny is crucial to a general understanding of the nature of National Socialism. In some respects it is implied by Ger¬ many's political history and by the manner in which German law devel¬ oped. German law is not the product of an uninterrupted development. At least two factors have operated to prevent this. For one thing, Germany did not achieve a national existence until 1871, and even after that date the federal structure of the Reich tended to en¬ courage the perpetuation of regional legal traditions. For another, the natural growth of a common or folk law was stopped short by the intro¬ duction of Roman law, which had been rediscovered by scholars at the Italian universities, in the 14th and 15th centuries. NGLAND, unified politically and isolated geographically, was able to stand firm, and the common law flourished unchecked. Based on an ever-expanding series of judicial pre¬ cedents rather than on statute, the common law nevertheless proved itself capable of adapting itself to changing social conditions. Its essence came to be a firm reliance on the spirit rather than on the letter. As Chief Justice Flolmes of the United States Supreme Court wrote "The life of the law is not logic but expe¬ rience." The absolutism of Roman law called for the categorization of all laws in rigid and comprehensive codes. During the 16th and 17th centuries many German states, principalities and towns enacted such codes, but it was not until 1871 that a criminal code uniform for all of Germany was pro¬ mulgated. Other Reich codes followed in swift succession. The creation of a law applicable to all of Germany did not imply, how- MAY 4, 1948 3 INFORMATION BULLETIN