The development of German law in the Third Reich

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The development of German law in the Third Reich

Post by David Thompson » 12 Feb 2005 03:39

Extracts[1] from expert opinion by Defense Witness Professor Jahrreiss concerning the development of German law, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10. Vol. 3: United States of America v. Josef Altstoettler, et al. (Case 3: 'Justice Case'). US Government Printing Office, District of Columbia: 1950. pp. 252-284.

Part 1 of 2 parts (footnotes in part 2):

DR. SCHILF (counsel for defendants Klemm and Mettgenberg): Professor Jahrreiss, may I ask you to tell us your name, your profession, and your residence.

WITNESS JAHRREISS: Professor at Cologne University; at present on the staff of editors of the record of IMT. Do you also wish me to name my residence, Counsel?

A. At this time, in Nuernberg. I was born at Dresden; the date of birth is 19 August 1894.

Q. So that I can afford the Court the opportunity to acquaint itself with your particular research field, may I ask you briefly to describe to us your field of research as professor of law.

A. My work since 1923 has dealt with the fields of constitutional law, international law, and the law by the League of Nations, general constitutional law, and philosophy of law.

Q. May I ask you, just by way of example, to mention your own publications -- those of a scientific nature.

A. Well, that is rather a lot; but publications which concern this subject here, I could mention Law and Calculability, on the foundations of law and state; another publication on The Relation of the Constitution of the Reich to the League of Nations; then in the textbook which Anschuetz and Thoma edited on German Constitutional Law, my work about The Equality of the Citizens before the Law; and above all, my own version of The German Constitutional System, of the year 1930.

Q. Concerning the first problem, the German constitutional law, that is the subject on which I wish to start. My first question will open the direct examination. Is it correct that Hitler in the order of the so-called Third Reich was the supreme law giver?

A. Yes, that is correct, although that was not so from the very beginning of that era. That only happened in the course of events. But at the latest, if you'd like me to mention a date, that occurred when the offices of Chancellor and Reich President were united in him; that is to say, 1 August 1934.[2] That is the latest date.

Q. It was like this then: Hitler's authority developed gradually until it reached its final culmination?

A. Yes, that is correct. If I may add this, one must say that the development under Hitler followed a development which occurred prior to his own era.

Q. Do you mean to say by that, that 1 January 1933 did not bring about a complete break of the development prior to Hitler?

A. Yes, that is what I would say.

Q. Do you also mean to say by this that the so-called change-over, that is the seizure of power by the National Socialist Party, was legal?

A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the change-over, whether one adheres to the formation of the government on 1 January 1933, or whether one discusses the enabling act, promulgated on 24 March 1933,[3] or how far together one wants to extend the events of the change-over. I can only answer conditionally. If one considers only the formation the government, that is to say the act of entrusting Hitler with the Chancellorship on 1 January 1933, and if by "legal", one means the purely outward formality, then it cannot be denied that the operation was carried out legally, namely, under Article 53 of the Weimar constitution,[4] according to which the Reich President forms the cabinet, and the Parliament -- the Reichstag -- only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why the Weimar constitution contains quite rightly article 54[5] which incorporates the parliamentary system by establishing the institution of the vote of nonconfidence and entrusts the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the sole act of the President; side by side with, let us say, the dismissal, with which the countersignature of the Chancellor is purely formal.

In the development of the Weimar constitution, after initial wavering, there evolved the principle that the new Chancellor appointed or signed the dismissal of the old Chancellor and his own appointment, which is really illogical. I don't think there is any need for me to explain that any further. But as the Weimar constitution in Article 50[6] provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich ministers -- at least one -- one was compelled to have even the appointment of the new Chancellor countersigned. That means naturally for the new Chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to 30 January formally the procedure was orderly; a great deal more difficult is the question concerning the Reich law of 24 March 1933, that famous law [the Enabling Act], the validity of which was doubted so much; it is much more difficult to answer if your question refers to that. That law has as its main contents -- I can almost say with a little exaggeration -- the elimination of the division of powers. Three provisions or groups of provisions of the Weimar constitution are excepted, but for the rest the government could now promulgate laws even if that meant changing the constitution of the Reich; for the normal life of the people, legislators, and supreme administrators are one and the same thing. That is a basic change of the entire structure of the Weimar constitution. And I can say frankly if I, during the first years of the Weimar constitution, as an expert on constitutional law, had been asked whether the Reichstag, even if there was a majority, could not change the constitution under article 76.[7]

If the Reichstag would make such decisions, could pass a law which, in effect, eliminates the Reichstag, if I had been asked such a question I would have said there is nothing about that in article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abandon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar republic, wrote the commentary to the constitution of the German Reich which is the authoritative commentary. Gerhard Anschuetz whose last position was that of professor at Heidelberg, was, I might say, a temple guard of the Weimar constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz' opinion carried, which was concurred in by all German constitutional lawyers, that there were no limits for article 76, concerning the amendment of the constitution. Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution, could abolish the republic, the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March 1933, one might have legal misgivings, I had something different in mind. I believe if I had been the President of the Reich, and if I had had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich President who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the majority present, that is, the majority which passes the resolution, did not constitute the majority of the Reichstag as elected [by the people] but constituted the majority of a Reichstag that had been curtailed by the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces; but even that doesn't help and, particularly, it doesn't help according to Anschuetz. Anschuetz and [other] German experts on constitutional law consistently upheld the view that the assurance of the Reich President, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny. Therefore, we have to say, under objective law there may be misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar constitution, the signature by the Reich President excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the so-called legality of the change-over, even purely formal, is very difficult to answer, but for the rest it seems to me that this is only an argument about words; [actually, it was] a revolution, and it was meant to be a revolution. Hitler even thought it was the only real revolution. And according to its aim and meaning it [i.e., a revolution] cannot be legal; but in any case, if it comes off -- that is how it always will be in the world of states -- it provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the source of all law.

Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy on the other hand, would you now, from the developments, explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.

A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. Even for many a German, Hitler's authority is a mystery, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler's regime. A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler's regime, but only appeared there particularly clearly. But above all because otherwise I cannot provide you with the background -- I should like to explain that a little further to the Tribunal -- above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various schools of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought, as far as I understand it, a great difference which cannot be overestimated. On the continent of Europe, in the course of four centuries, a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a lawyer, "That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but after all, that is the historical reality." How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning article 102 of the constitution[8] as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote -- this is in the commentary of the 14th edition, page 476 -- "If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations."

I had to read this out verbatim. Therefore, it was rather difficult for the interpreter because of the position of the verbs.

The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this -- and I now have to broach a subject, the effect of which did not affect England or the United States. The state of the European continent came into existence from the fragments of the Corpus Christianum of western Europe. The break of the medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great Florentine; Jean Bodin, the great Frenchman; and as far as Hegel, the German. As a result, ethical evaluations may be made by the legislator, parliament, or the monarch, but the resolution passed by the monarch or parliament deprives those who are governed by these laws of all right of objection.

May I draw the attention of the Tribunal to one event that occurred under the Weimar constitution. During the first years of the republic it became known among the public that Berlin was thinking of forbidding any revalorization [or revaluation -- Aufwertung] by law.[9] The judges of the Reich Supreme Court of Leipzig at that time formed their own association, and that association of judges, in view of that rumor, held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality. There was a storm of indignation among the Reich government. The Reich Minister of Justice protested using very sharp expressions, and the Reich Supreme Court did not carry out its threats. However, in 1927 the Reich Supreme Court in a decision published in volume 118 declared: "The legislator in the autocracy is not bound to any other restrictions but those which he draws for himself from the constitution or from other laws."

Now, I ask to be permitted to speak about a second point which concerns only Germany, at least to that extent. It is easy to forget that the German people for 33 years have never had really normal conditions. If one looks at that from the human point of view, it means that about 50 age-groups of German people -- that is more than two-thirds -- 50 age-groups of people have never seen normal conditions; that is, all the people who were born after 1914, and those who, before 1914, did not have any conscious experiences. For all these people, life -- and that was the normal thing for them -- was a continuous change from open to latent crisis. One was always exposed to danger and always with a longing for stable conditions. The consequence is that for most Germans, order, which deserves that name, is something hard to imagine. To the German people order has become to mean something transitory, something unstable, something upon which one cannot depend, and doubtless it did not contribute to the stabilization of legal thought that, beginning with the time of the Weimar republic the machinery of legislation was running incredibly fast. I would, indeed, desire for the judges [of this Court] to see the maze of decrees and laws published and showered upon the German people since 1919. Most of those were laws or paragraphs of short existence. We had real inflation of legislation, as far as I know, in history without example at any other period. And that was not only so during the Weimar era, it became worse indeed during the period of the Third Reich. Before Hitler came [to power] he turned with strong criticism against that positive manufacturing of laws. In his opinion, only the "sound sentiment of the people" should find its inclination in laws. But when he was in power, the machinery if this was possible, then was in even higher gear.

I believe that I do not have to credit it to my own inefficiency but I have to believe that no German jurist can say anything else of himself, but, none of us were in a position to know all the headlines of all the laws and decrees that have been passed. With things as they were, one has to understand that a large portion of the German nation, many jurists among them, became tired and apathetic toward authority, and skeptical. And on the other hand it could not be avoided that many impulsive individuals revolted, wanted to take action, wanted to do something about it, wanted to come to a decision, to a clarification, to a simplification, to find a way to see through all that.

In our era -- at least one can say that for Europe -- the political disease of fanaticism and doctrinism has broken out; tolerance became more and more rare; each single technical question was tainted with the question of religious allegiance. Under these circumstances, one can easily obtain a picture of the chaotic condition of legal thinking; small wonder that a state, to see to it that laws once decreed have to be carried out by the authorities, demanded particular emphasis because otherwise not even the minimum of order could be guaranteed which was at most possible. Particularly because the entire situation, the entire atmosphere was so unstable. The essence that "an order is an order" had to become the last refuge of those actually in power.

And now, a last part of it. Inflicted against this background of all that we find in the constitution which, on paper, perhaps structurally is the most sympathetic, the most logical democratic constitution of the world, with a tremendous, carefully thought-out system of checks and balances, safety valves in order to assure that the individual citizen would be the one to have its full advantage. But that constitution was worked through elaborately, and I say openly, that my determination to study constitutional law was in part based on that constitution which enthused me as a young man; this constitution, at the same time, was very complicated in its structure, its structural power and in legislative procedure.

With the permission of the Tribunal I shall try to explain that life itself demanded to have these matters simplified -- rather less artistry but more efficacy. With that I believe, in all brevity, to have said something of that which is absolutely necessary to know if one wants to understand the essence of the Weimar constitution and its development which, long before Hitler, had led to a situation which does not permit to recognize any longer the situation of 1919.

In German we call a law which was brought about by the legislative authority, a law in the formal sense. And the basic thought for all, which is to be found in all European constitutions, is this. If the government wants to, let us say, increase taxation, then that means it wants some acts of legislation which authorize the authorities or the various agencies, to interfere with property. The government, therefore, wants a law in the material sense; therefore it must have a law in the procedural sense or in the formal sense, through legislation. That is what we call the principle of the necessity of the law, the fact that a law is required. Where this is brought about, we have a division of power. And if it were brought about -- and it has never actually been carried out -- then this is the way it would have to come about. The legislative body then would have to make all substantive laws, but it would do nothing but just that.

Both these cases do not apply. Parliaments, time and again, are given the privilege or the right to come to resolutions or decisions which have different content, for example, decisions on budget. These decisions on budget are not acts of legislation in the sense of setting standards. In German constitutional law it is definitely prohibited to include into the budgets acts of legislation or standards in that sense. The Parliament has a part in the forming of the cabinet. That is one thing. The other -- and this is what we need -- is the following. It may happen that the government is authorized to enact legislation by virtue of the constitution itself, or by virtue of later laws passed by the parliament. In German one calls these acts of rule making [Akte der Normsetzung] of the government, that is of the executive - which have a legal maxim as content legal decrees [Rechtsverordnungen]. "Legal" on account of their content, and "decrees" on account of the method.

This institution, which we find in every European state, was the starting-point for the further development and the paving of the way of the orders by Hitler, because in the Weimar constitution there is a law for the government to decree laws, the utilization, or I should say the exploitation of, which led to the fact that since the middle of 1930 the normal legislative body in Germany was really the government. That is the famous provision of article 48, paragraph 2. As a rule, legal decrees on the basis of this article are called dictatorial decrees, but also apart from that during the Weimar era, much authority was received for the government to issue decrees. In countless laws the Reichstag empowered the government, in order to carry out a law, or in some cases in order to amend a law or repeal a law, to issue legal decrees.

However not only in the Reich do we find this institution or this instrument of legal decrees, but also in the German states, the German Laender. In the constitution one always finds a [provision concerning the] right to issue emergency decrees (Notverordnungsrecht) and the legislatures of the various states frequently authorize the [state] government to issue decrees in regard to substantive law.

A law of the Reichstag of 13 October 1923, which is called Enabling Law, "Ermaechtigungsgesetz", signed by Reich President Ebert, conferred upon the Reich government the power, among other things, to issue decrees in regard to substantive law, even deviating from the legal principles of the constitution of the Reich. This law is particularly important. It was published in the first years of the Weimar constitution under Reich President Ebert, and it cleared the way for a development which the founders of this law to this day probably regret deeply.

May I refer the Tribunal to the following:

Several months ago, in Munich, a book was published, "The story of the Weimar Constitution." The author is Professor Willibalt Apelt, now at the University of Munich. We used to be together at the University of Leipzig, and I also had the honor to lecture for him in addition to my lectures when he became the Minister of Interior in Saxony; that is, the Police Minister.

He was one of the most outspoken democrats we had in Germany. This book throughout is a [settling of an] account (Abrechung) with Hitler. It altogether lauds the Weimar constitution, and therefore it is particularly important to note that Apelt considers this law the beginning of all the evil in this development and states explicitly that this law cleared the way to that other enabling law of 24 March 1933. The date of the law is 13 October 1923. It appeared in the Reichsgesetzblatt of 1923, volume I on page 943. Since the middle of 1930 one did no more work with enabling law decrees, but one used article 48, paragraph 2. Earlier already that had been applied. If I am informed correctly under Ebert alone, 136 decrees of that kind were passed, that is to say, until 1925 when Hindenburg became President. At first a little less use was made of this means. It was activated again when the economic crisis of 1929 was nearing Europe. Conditions in Germany deteriorated from week to week, and under Bruening whole bundles of emergency decrees, of dictatorial decrees, were passed. In 1932 we had progressed so far in that direction that the Reichstag was practically excluded as a legislative body, and the Reich President, together with the Reich government (the Reich cabinet because according to article 50 they had to work together) was really the normal source of legislation. From then on until Hitler's acts of legislation it is indeed only a short step, and if Hitler himself would not have set out to give the whole matter a triumphant dictatorial aspect, if he had been satisfied with an enabling act like that of 1923, if he had not had laws enacted by the government but decrees, the entire enabling act would not have caused so much rumpus as it did.

Q. Professor, may I ask you to explain briefly to the Tribunal who Reich President Ebert was, because we have to assume that the name alone does not give a plain indication.

A. We had two Reich Presidents. The first, Friedrich Ebert, who came from the social democratic party of Germany, not elected by the people but by the national assembly, and then the second, von Hindenburg, who was elected by the people.

Q. And my second and other request is that you quote to the Tribunal article 48, paragraph 2 of the Weimar constitution.

A. Article 48, paragraph 2. Concerning the so-called dictatorial powers of the president -- and with the permission of the Tribunal, I shall formulate these sentences linguistically in a way which make them easily translatable -- "The Reich President may take those measures which are necessary to reestablish public security and order if, in the area of the German Reich, public security and order are considerably disturbed or endangered. If required, he may also intervene with the aid of the armed forces. For that purpose he is authorized temporarily to invalidate in whole or in part the basic laws which are laid down in the articles 114, 115, 117, 118, 123, 124, and 153."[10] May I add, these seven basic laws are the so-called "liberal principles," [basic liberties], the same which we find, for instance, in the Constitution of the United States, the Bill of Rights.

Q. Professor, we are now concerned with an attempt to explain the Hitler decree to the Tribunal. After all we have heard from you now, the development which has led to it that the government governed by decrees rather than by legislation, that development started already as early as 1923, and according to the information we have from you was again stipulated in 1930 at the time of a different government. I think it will be necessary to explain to the Tribunal that this development led up to the Hitler decree; went through various stages of development, and I may ask you still to describe this to us, because in the course of this case it has become necessary that this development be shown as clearly as possible.

A. The cabinet assumed responsibility [for all orders and directives issued by the Reich President] to the Reichstag by countersigning them, and the Reichstag could react rather disagreeably; the cabinet, if the Reich President and the Reichstag were of different opinions, was forced to make a decision. If the cabinet took the opinion of the Reichstag, then the Reich President either had to give in or change the cabinet; if the cabinet went along with the President then nothing else was left than to risk the vote of lack of confidence; an essential vote of the Reichstag could lead, therefore to a struggle of that kind, and in German practice the cabinet which went with the president against the Reichstag was called a "fighting government" [Kampfreigierung]; not the other way around. In the long run it showed that the Reich President, when the Chancellor went with him, was stronger than the Reichstag. That also I may be permitted to describe briefly. If the Reichstag did not agree with the president, was not satisfied with the president's decisions, it could not, properly speaking, do anything. Even though the constitution in article 43[11] reserved to the Reichstag the right to ask the people of the Reich that they demand the resignation or the dismissal of the president. That, in practice, never occurred, and for a very simple reason. If the Reichstag would have come to a decision of that kind, and the people would not have gone along, then that president would have been automatically reelected for another 7 years, and also, the Reichstag would have been dissolved, and that would mean suicide [for the Reichstag]. However, the president is in a much better position; if he is in agreement with the Chancellor, he can dissolve the Reichstag himself. That is where the famous red folder comes.[12] If, therefore, the president and the cabinet are in agreement, and there is a threat of censure on the part of the Reichstag, then the president can turn over to the Reich Chancellor the order or dissolution [of the Reichstag]. The Reich Chancellor is present in the session, and when it comes to the last, he just shows that red folder and that settles the entire matter. Now, the Tribunal will certainly understand why in discussing article 48, paragraph 2, I did not even read paragraph 3,[13] because there it is expressed that the Reich President has to notify the Reichstag of every dictatorial measure and if the Reichstag wants it withdrawn, and the demands are made of the president, the president has to repeal his measures. If he and the cabinet do not wish to do that, they have the possibility of dissolving the Reichstag, and that brings me back to what I pointed out before. Maybe one cannot understand why the Reichstag permitted itself to be dispossessed, as far as legislation is concerned. It would have had to be made entirely different to be in a position to oppose due to the fact that the major change could not depend upon them. The Reichstag in every demand of repeal risked its own life.

Perhaps at this moment I can jump ahead into the Hitler era. When the Hitler government had received the right to pass laws it no longer needed the Reichstag. If one wanted to use the Reichstag at all as a legislative body, one did so to save face. But, now the government did no longer make any suggestions as was, in former times, the normal procedure. The government was the legislator itself. But that way was chosen, a way which during the Weimar era played no part.

Under Hitler the Reichstag since November 1933, consisted only of one faction. That is just as senseless as one party. This faction introduced a bill with the name of Adolf Hitler and three others. Frick, the faction chairman accomplished this, Goering acted surprised, being the president, and then, the whole game went on as you know it.

That abnormal way, therefore, was chosen in order to stage the play. Now I go back to the Weimar era. As to whether the bill was introduced this way or that way, for the Reichstag, that was only raw material. It could say, "We will not do anything." It could say, "We will pass it." It could say, "We will change it." If a bill is passed, it means that the bill is accepted or amended; then the Reich President received the law which was been passed by the Reichstag for his signature. Signing a law, that meant as to whether the law was passed in the proper way, and as to whether the text which had been submitted to the president was actually the text which was passed under the law by the Reichstag. (It did, in effect, happen that other documents were submitted to him than those passed by the Reichstag, of course, by mistake. Next, the Reichsgesetzblatt had to publish it with a special wrapper in the changed form.) And when that happened, then, the president gave the order for promulgation. In Germany we usually call it promulgation, too. So far so good.

So much so good. But, now, it could happen that the Reich council or the Reich President with the consent of the government or the government with the consent of the president or some of the members of the Reichstag, itself, were dissatisfied with the law, and, in that case, the constitution provided that those unsatisfied persons or bodies could appeal to the people. That is very complicated, Your Honors, and I do not think that we need it for our purpose here. You will find it written down but I don't think I need to elaborate on it here.

If such an appeal would have been made to the nation -- it never happened, it got stuck in the beginning -- then that had to be fought out at the time between signature and promulgation. But the constitution had provided for a special procedure, an act of absolute democracy became possible -- the people of the Reich, that is to say, at least one-tenth of the whole electorate -- at that time, that was at least four million voters could join together and demand that a bill which had to be drafted up to the very last [detail], was to be submitted by the Reichstag, and, in that case, the Reichstag was not as free toward the draft as in the other case. But it was under pressure of an ultimatum. It was only left with the choice either to accept it as it was or the government had to ask the nation. That was attempted a few times but it was never carried out properly.

I should assume that those remarks were sufficient to show to the Tribunal that on the one hand the Weimar constitution was very democratic, with the intent to protect the people and its rights; but that on the other hand the constitution was so complicated in the structure of the bodies and in the legislative procedure, that one need not wonder if an ever stronger movement urged for simplification. Furthermore, the constitution in itself had something unclarified, something provisional and that in severe respects and that always happens if a dualism is created; for every dualism of power endeavors at its own dissolution. We had, furthermore, the small dualism between Reich President and Reich Chancellor; and, I haven't mentioned that, there was the old grave German problem of dualism between Reich and Laender; all these various problems of dualism were urging for dissolution and they were in process of dissolution prior to Hitler. Hitler then completed that development. May I explain that in a few remarks?

First of all, the dualism between Reichstag and Reich President was abolished. The Reich President is the victor. Under Hindenburg the formation of the cabinet more and more came under the power of the Reich President and that of the Reichstag decreased. The end of this development was 1 January 1933. The Reichstag was no longer asked to do any work. Purely formally, under article 53, the president appoints the new government. Article 54 was no longer considered a serious threat. The parliamentary system is dead and we have the first demoting of the Reichstag. The second had already started in the meantime, as I have shown. The Reichstag had already resigned more and more as a legislative body; it is only the culmination of the development, what we see in the law of 24 March 1933 [Enabling Act] and the aftermath, the new reconstruction law [Neuaufbaugesetz] of 30 September 1934; the division of powers is dead. The Reichstag in its original and foremost function has been dethroned. What was its purpose now? In July 1933, political parties were definitely prohibited. A genuine parliament was no longer possible. The first Reichstag elected after this July 1933 law, in November 1933, was the Reichstag of one faction only elected by voters of one party only. It has been said that it was purely an assembly of acclamation. The great dualism in the Reich ended thereby and on the grave of the Reichstag there are three crosses. The small dualism between Reich President and Reich Chancellor ended with the death of Hindenburg and is expressed in the law of 1 August 1934, concerning the head of State [Staatsoberhaupt-Gesetz]. The greatest and most serious dualism between Reich and Laender in effect was eliminated before that. Usually one says in the German constitutional science that only the reorganization law of 1 January 1934 had turned the Laender into Reich provinces but that is certainly not correct. Looking at the facts themselves, that step was already taken by the Reich governor law [Reichsstatthaltergesetz] of 7 April 1933. When one summarizes all that and looks at those results together, the final phase is this the entire power of the State in the German Reich is combined in the hand of that one man who quite arbitrarily can use that power to decide individual cases or to set new norms. It depends only on him, from the practical point of view of power, as to how long he refrained from interfering in the field of judiciary.

Q. Professor, that was the question about the development up to the point when this one man, Hitler, held everything in his hand. I would say the result of historical development. We are interested in explaining to the Tribunal, if I may say so, the dogmatical position of the Hitler decree as a legislator. Therefore, my question concerning your statements up to now concerned the development of constitutional law up to that historical point. But now, the Hitler decree and the act of lawmaking became actually one and the same. What was the effect of that on the legislative, on the executive, and on all forms of the state life after that time ?

A. Perhaps I may begin with the procedure of the Hitler decrees, that is to say, with the exterior manifestations. I have shown that in German constitutional law we had the difference between statute, in the formal sense, and ordinance. The one was the act of the legislature -- the other of the executive. On account of the enabling act and as a consequence of the first acts of the Hitler government, the procedure of legislation became a dual one. We still had more or less -- for Sundays only, so to speak -- the procedure of legislation through the Reichstag. The normal course of legislation was the statutes enacted by the Reich government, which should not have been called that way. We also had, from the imperial days, and we kept it up during the days of the president, the decree by the head of state, especially distinguished in the way of ordinance, for instance the organization act and we had the ordinance by the government. Hitler, by and by -- but it happened rather quickly -- emancipated himself from those regulations of the laws which were previously valid and concerning the various forms of norms, he used them arbitrarily. As to whether a statute passed by the Reichstag, as I described it, was brought in by suggestion of the National Socialist Party with Hitler as the first mover of the motion, was passed by way of acclamation, without debate; or whether the law was decided on by the government that happened very quickly by way of circulation or whether Hitler called it "Decree by the Fuehrer and Reich Chancellor" -- later called "Fuehrer Decree" or ordinance, such as the famous ordinance on the Enforcement of the Four-Year Plan for the legal value that did not matter at all. In all cases Hitler alone decided, whether he would take advice or not, whether there was a cosignature or not, for genuine cosignature in the constitutional meaning, of course, could not exist any more. There have been many arguments as to what the cosignatures which weren't always affixed meant. People have tried very hard to find a meaning, but the only thing that is really certain is that these cosignatures did no longer have the meaning or significance of the proper countersignature. There was nobody toward whom one could have assumed any responsibility by countersigning. Therefore, all fixing of norm, signed by Hitler's name alone or together with other names, is merely an act of will of that man -- whether it calls itself a law or something else.

The only difficulty is represented by the so-called secret laws, though 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.

I believe I have now answered your question. I would like to say one more thing, so as to emphasize the gravity of the development. I had the permission to show the Tribunal the structure of the acts of the State. Naturally that structure can also be applied to Hitler's acts, but only one of those acts lost its meaning almost completely under Hitler. If Your Honors will kindly recall chart 1 to your memories, where on the left side we had the norms and then the authorization norms, the norms which authorized interference, I had differentiated between special and general relationship or subordination pointing to the soldier and the citizen [In a previous section of his testimony, the witness had differentiated between the ordinary private citizen, who was affected by many norms only indirectly, and such categories as the soldiers and the public employees, who were more directly affected by certain norms.]. Those differentiations under Hitler gradually lose meaning. Hitler exerted and overburdened the strength of the German people to such an extent that finally he no longer saw before him citizens and smaller groups of persons under special obligation among them, but for him the Germans, all Germans were always on duty. A private sphere of activity no longer existed for him. With him there is no meaning in the differentiation between substantive laws and official instructions. It is all the same to him. The citizen is dead, because all have become officials. That is the final point of a development which, from a complicated state of affairs, was working towards simplicity, and that is the gruesome result.

PRESIDING JUDGE BRAND: Dr. Schilf, would you pardon a question directed to the witness at this time? Dr. Jahrreiss, if this question interferes with the orderly course of your presentation, I suggest that you ignore it. But you told us in your discussion of procedure your views as to decrees signed by Hitler and one or more ministers. Would you care to specify or to indicate to us a little the view you have with reference to the justification of authority decrees not signed by Hitler, but signed by one or more of the ministers? I think we have seen a good many of those in the record. In other words, decrees executed or signed only by various of the ministers, but not by Hitler. Do you understand my question ?

WITNESS JAHRREISS: Yes, thank you. I have spoken so far only about orders by Hitler, but in German constitutional law dating back to the days of the monarchy and the Weimar republic we have not only norms fixed by the Reichstag or the head of the State, but also many norms laid down by the government, in the narrower sense by the minister. The ordinance (Verordnung), of which I spoke in the beginning differentiating it from the statutes passed by legislators, is normally the ordinance of a minister, and under German constitutional law the following is valid. That was not changed in the Hitler era. Administrative ordinances, that is to say, norms which are not legal principles in the narrower meaning, are issued by every minister within the framework of his own department, without any special basis. Other ordinances, that is to say, legal ordinances, can only be issued -- he can issue them, but he can only issue them if he has been authorized to do so by the constitution or by a legislative act. That was, in fact, what I described at the beginning. And so, in the Weimar era, we had many ministerial ordinances if the law empowered the minister to issue them. If I may add this, the result of that differentiation was this, if the courts had to apply an ordinance by a minister, or to be more precise, when it was doubtful whether it was to be applied, then the court had to examine whether the minister was empowered, was authorized to issue it. If the court denied that question, the ordinance did not exist. May I ask whether this was in answer to your question, Your Honor?

PRESIDING JUDGE BRAND: I was interested especially in the source of authority, of decrees signed by various ministers after Hitler came into power. Would it be accurate to say that such decrees received their validity because of a delegation of power to the minister directly from Hitler?

WITNESS JAHRREISS: Yes, for legal ordinances. Hitler was the legislator. He could issue the ordinances himself but he could also delegate authority.

DR. SCHILF: Professor, I should like to follow up your words. In the Hitler state, so to speak, all people were on duty. There were no longer any citizens. You said the citizen was dead. May I ask you, in our legal language we call an order by a phrase which is very concise and which might explain it better to the Tribunal, that the law also in the former meaning was a law that was the same as an order to a servant. May I ask you to tell me whether that general instruction to an official, a civil servant, to a servant was the same as the law which had been solemnly promulgated in the Reichsgesetzblatt?

WITNESS JAHRREISS: If I have understood your question properly, you want to know whether the obligation was the same?

A. Yes, no doubt. For those who were concerned, those to whom the order was addressed, the order issued by Hitler, whether it was concerned with an individual case or whether that was a legal norm or whether it was an official instruction, was binding.

DR. SCHILF: Now I want to ask you, what, in principle, was the relation between international law and the law of the individual state, and I would like to ask you whether that relationship was changed under the Hitler state?

WITNESS JAHRREISS: Counsel, I suppose I am right in assuming that by that question you refer mainly to Article 4[14] of the Weimar constitution?

Q. Yes, that is my intention.

A. Among the methods by which human beings are directed in social intercourse, there is, as one of several, the order [Befehl]. That in itself, unsympathetic as it appears to people everywhere as a method, has the one characteristic that it is unavoidable. Consequently, there is nowhere among human beings a sphere where there is no rule. On the other hand, all mankind in effect today stands in permanent relation of life with one another without, as a whole, being subject to one rule. Both together result in the situation which again and again worries people, which we call the situation referring to international law. Only groups of mankind, smaller groups or larger groups, are under a common rule. Therefore, if a continuous life, in spite of being divided into various units of rule, is to be made secure, and that in a proper manner, then there must be norms which hold together in an entity those various units of rules.

Or to express it in a different way, the power of authority of the various units must be brought in line in such a way that a community life is possible. That means, however, the ruling authority of the individual units must be restricted by the whole. The central point of international law is therefore constituted by those norms which lay down that limitation of the authority of the individual groups. Therefore, I suggested, and I was the first person to demonstrate that in science, that the law of an individual state, that is to say the constitutional law, should never be described without also describing the limitations under international law. If we were to achieve the situation, if I may say so here, whereby everywhere in the world all young jurists from the very beginning would be accustomed to see the constitutional questions of their own country always in connection with those of international law, then a great deal would have been done to strengthen international law.

Summarizing, that means the individual state is placed under an obligation by international law to arrange its own order by legislation in such a manner that the authorities in their decisions work in such a way as is demanded by international law. In [legal] science, that is called -- the state is under an obligation to organize its law in accordance with international law. How can that be done ?

There are several methods available. The legislator can, from case to case in his own system, amend those provisions which need changing so as to comply with international law. He does not need to mention international law at all in doing so. That is the way states proceed again and again. A different method is the one which is called the method of transformation. That is, the legislator does not trouble to bring into line the law of his country, word by word, and paragraph by paragraph, with international law, but he tells his official agencies, "Consider the norm of international law which in itself only binds me, as if I had cast it into a law."

That method, which in German we also call "Recasting" [Umgiessung] can be applied specifically or generally. That is to say, the legislator, as soon as he has to consider a new treaty under international law, can recast that treaty or he gives general instructions for the application of the international law which is valid in the particular case. Both methods have been used among states.

Concerning this method of transformation, a difficult problem arises. In all states which have laws of different rank, as in the German Reich under the Weimar constitution that is to say, either laws which have the validity of the constitutional laws, or ordinary laws the legislator has to ask himself whether he intends to apply the recast international law to the highest group or not. Under the Weimar constitution, for example, it was indisputable that the recast international law had merely the position of an ordinary law. There might even be a state which would place the recast international law above constitutional law. What do we need that for? Every official agency in every state finds itself in the situation where it is confronted with several laws of its own state which appear to contradict one another, or in fact do contradict one another, which, however, all claim validity. I need not tell you jurists that since the days of Roman law everywhere norms have developed concerning the elimination of such conditions; where state laws have varying status, further norms of collision have been constituted. If a state would have a general norm under which international law takes precedence over all domestic law, that would be the greatest safeguard which is possible at all, that the law of the country is handled in accordance with international law. I do not know whether there is such a state. The German Reich at any rate was not one of those states. I think with this background I can now answer your question.

The relation between international law and the law of the Reich has been regulated in the Weimar constitution in article 4 and article 45, paragraph 3[15] . There have been many arguments about article 4, at the time when the national [Constituent] assembly was sitting [in 1919]. After many arguments and after sufficient attention had been paid to article 45, paragraph 3, eventually the following legal situation evolved. As far as the German Reich, by treaty, enters into obligations under international law, in such spheres of life which are subject to the legislative authority of the Reichstag, the President of the Reich may not ratify the treaty for Germany before the Reichstag has agreed by law. That is a transformation of a special nature, and anticipated transformation, for if the treaty is concluded, because the other partners ratify it also, then, at the moment the treaty becomes valid, the special recasting has already been effected. For the rest, all other international law, as far as it is generally recognized, but also acknowledged by Germany, is generally speaking recast by article 4. Both ways of recasting gave international law the status of an ordinary law of the Reich. Yesterday I had opportunity -- concerning the question as to the moral limits of rule -- to point out that under the Weimar constitution the courts were not authorized to examine a law as for its validity under international law, and certainly not the administrative authorities. Under Hitler that attitude was not changed. The general method of transformation of article 4 was kept on, and the specific one was needed even less frequently because the approval of the Reichstag was no longer required for the conclusion of treaties. Hitler could conclude every treaty under international law himself. As soon as the treaty had been concluded, as soon as it had come into force, it had already been recast, for Hitler's ratification was, from the domestic point of view, a Fuehrer Order.

Q. Professor, to supplement your explanations, may I ask you to read out to the Tribunal article 4 and also article 45, paragraph 3, so that the passages you mentioned become quite clear.

A. Article 4 says: "The generally recognized rules of international law are valid as binding constituent parts of the law of the German Reich law." Article 45 says: "Alliances and treaties with foreign states which refer to matters in which the Reich has legislative power require the consent of the Reichstag."

Q. Another supplementary question, Professor. You told us that treaties under international law were concluded by Hitler alone. I would like to ask you to explain to us how the question can be solved concerning the person who was subject to Hitler's order if there were contradictions?

A. I believe I understand your question to mean that among the laws or ordinances which were valid in Germany at the time, there were some which were contradictory to that which Hitler had decreed concerning the treaty. That is not a particular problem. I have already pointed out that that problem was merely the problem of collision, and if Hitler, in contradiction to the treaty he had concluded later on, issued an order in a general way or in a specific case contradicting the former order, the later order, if the contents were the same, was to apply and the old maxim applied -- lex posterior derogat priori -- that was so concerning the relations of the laws under the Weimar constitution, and it was the same under Hitler; but I think it will be necessary for me to say a little more on that subject. It can happen, and it does happen again and again, that a state knowingly, in its legislation, gets itself involved in a contradiction with international law. The last will of the state is decisive for the official agencies. In that case, the nation until that collision has been eliminated, lives under constitutional law which contradicts international law. The settlement, which is bound to come, is brought about by international law by the state being regarded as one which has committed an offense under international law, and entails and holds that responsibility to the provisions of international law, and as quickly as possible that inconsistency has to be removed by later legislation. As to whether further consequences arise, that we need not discuss here. In the case of every state the following applies. For the official agencies which have to apply the law to a certain specific case, there are frequently, if one proceeds logically, several laws there are after all many situations in life which extend beyond the frontiers from the human point of view or from the material point of view.

One can bear in mind that instead of the state's own law or side by side with the law of that state, foreign law can be applied, or it may be a case of church law possibly having to be applied. The question as to the application of international law, therefore, belongs to a wider scope of the great problem which is called the problem of the norm concerning the application of law, or in other words in every legal system there is, by the side of the system which regulates the relations between human beings as such, a system which instructs the authorities as to which law they are to apply in each case. I do not know of any state nor do I know what law could be possible which does not proceed in this way. The officials have to apply the law of the state which is in force at the time except if the legislator admits or orders another solution. Consequently, the provision of the status of recast international law is, therefore, only one possibility of the various possibilities of applying international law.
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Post by David Thompson » 12 Feb 2005 04:18

Part 2:
Q. Professor Jahrreiss, for the purpose of this trial we are interested in establishing whether an official himself was confronted with the question that international law deviated from the state law. If he himself was confronted with that situation, I want to ask you in what direction did he have the choice, or did he have any choice at all? Was he restricted to one norm according to the general view or to the view of the Reich constitution as far as it was still in force under the Hitler regime? Was he bound by that?

A. First of all, I have to explain the underlying facts of your question. Apparently you have in mind the case where a law or an individual decision exists which, in the view of the official, is inconsistent with international law.

Q. Inconsistent with international law, but which unilaterally is the law of his country, and this official now is confronted with the question to what norm is he to adhere?

A. I have already said that under the Weimar system which on that point was not changed under the Hitler regime the official had to apply the recast international law as an ordinary Reich law, and now he had to solve that problem of collision which you have mentioned, in the same way in which he solved the problem of collision between two ordinary Reich laws which were contradicting each other. In effect if the law under Hitler had been issued and afterwards the Reich assumed a new obligation under international law which was recast, then that had to be applied and not the former law, and vice versa. Have I answered your question?

Q. Yes, but there was one more possibility for the imaginary official. If the law of a country perhaps intentionally deviated from international law, what norm did the official then have to apply?

A. I have already said that in the Weimar era already the moral background or the background of international law of a legislative act was removed from the scrutiny of the official and even removed from the scrutiny of the judge and of the Reich Supreme Court. The background of international law could not even be examined by the Staatsgerichtshof [supreme constitutional court]. The supreme constitutional court was only allowed to examine whether it was constitutional, but it was not allowed to examine it from the point of view of international law. To express it differently, whether the law had been passed by the State in such a way that it was inconsistent with international law on purpose or not, that could not play any part at all; and that was the legal state of affairs, regrettable as it may be.

Q. For the purpose of our trial we are particularly interested in the norm of the Hague Convention of Land Warfare. May I ask you to explain to the Tribunal with special reference to whether the principles of transformation which you have explained apply to the Hague Convention of Land Warfare as well?

A. Counsel, with that question you have approached a particularly difficult problem. You know that the validity of the Hague Convention of Land Warfare also concerning the clause of general participation has very often been doubted. The Hague Convention and Warfare with us was recast, and specifically -- that can be doubted in my view -- most of what is said in the Hague Convention should be considered as recast pursuant to article 4 of the constitution even if a specific recasting did not occur. That follows from the history preceding the Hague Convention of Land Warfare. When the parties to the treaty, among them the German Reich, in 1907 signed the "Convention Concerning Land Warfare," for the most part they only laid down in law such points which in any case were already international laws by customs and, therefore, assured. It would not always be easy to say whether a provision of the Hague Convention belongs to that group in part or not or as a whole. Have I answered your question correctly?

Q I would like you to refer to article 1 of the Hague Convention and to read it to the Tribunal.

A. Yes. You mean article 1 of the Convention, or the appendix? Article 1 of the Convention you mean. Very often when one talks of the Hague Convention of Land Warfare, one means the appendix. Article 1 is a particularly concise example for the fact that the states were conscious of the character of international law such as I described, because it places the states under an obligation to give instructions to their land armies which are in accordance with the enclosed Hague Convention. As to the methods they employ, they are left open to the various states. For example, the German Reich could without mentioning the Hague Convention have passed a German law as to the behavior of the German army in wartime. It was technically easier to give the order to pay attention to the Hague Convention in the event of war. And thus, the points laid down in the treaty as international law, and which in the proper meaning do not affect the individual human being but only bind the state as a whole, were reinterpreted by the legislative authority to mean regulations applying to the conduct of the individual.

Q. Thank you, that answers the question.

Q. Professor, I had the opportunity to show you the book of Heinrich Triepel, International Law and State Law. I would like to submit to you pages 153 and 154 and ask you to read that part to the Tribunal and to explain whether that is in accordance with your opinion.

A. I have in front of me the book of Heinrich Triepel, International Law and State Law of 1899. This book

Q. Excuse me, Professor. Is it the first edition? I have just been asked if there are several editions.

A. No, there are not several. It is the first edition. This book, at the time, was a sensational book for the science of international law in the whole world. It was the first book which systematically treated the questions which I am supposed to supply information about here today. And what Heinrich Triepel laid down at that time basically has been recognized in the entire science of international law and only after the First World War a certain lack of security in theory, not in practice, developed because the so-called "Vienna theory of law" [Wiener Rechtsschule] founded by Hans Kelsen, who was my predecessor in Cologne, and who is now teaching in the United States, with its so-called "pure theory of law" or "norm logic" conceived the things logically. This did not affect the practice of international law at all, and thus the sentence is applicable which Triepel formulated on page 153 of this book, "Judges and subjects are under the obligation to apply the law of the state, even if contrary to international law, and to follow it. It is not up to them, but up to the government to take into consideration the differences and the divergencies with international law which may arise out of this."

DR. SCHILF: May it please the Tribunal, I have concluded my questions to Professor Jahrreiss.


MR. LAFOLLETTE: I do want to ask you, Dr. Jahrreiss, a hypothetical question. You may not agree with the hypothesis which I hypothesize or the implications perhaps inherent in them, but just for my own purpose and for orderly procedure I ask you to consider my question and answer it on the basis of the facts which I hypothesize, purely. Let us assume that I was subject to the complete power of an individual we will call "A" to force me to obey his orders implicitly; and, under those circumstances, I saw "A" procuring a strong rope, strong enough to bind a man completely and securely. Secondly, that I saw him preparing a strong wooden frame upon the ground, with iron rings through which he could pass the rope; and, so placed, that they could bind the legs and arms of a man securely. Third a wooden block so shaped that a man's neck could be placed on it with his head extended beyond it. And four, that I saw this man "A" sharpening an axe large enough and strong enough to cut through the neck of a man. And suppose at this same time I also saw, standing always in view, from one to six men, each of whom I know that this man "A" has a violent hatred for and has threatened to kill; and each of whom I know that this man "A" has the power to capture if he chooses. Now then, let us assume that this man "A" captures one or more of these men that he hates, and that I know he hates; and binds this man with the rope that I saw him prepare, upon the frame that I saw him build; and places his neck on the block that I saw him prepare; and that then "A" hands me the axe which I saw him sharpen and orders me to cut off the head of this captured, bound man. Would you say that under those circumstances I would be guilty or not guilty of killing the man whose head I severed at the direct order of "A" who had the full power to order me to do so.

DR. JAHRREISS: I understand it this way -- that guilty or not guilty is to be considered as guilt under criminal laws.

Q. On the assumed facts, yes.

A. I just want to ask you a question. Do you mean it as a legal question or as a question of morality?

Q. As a question of law.

A. Of law, yes. And according to what criminal law, and in what state?

Q. You can name the state; I don't care.

A. Well, is that supposed to be a question in Utopia?

Q. Let's put it in Germany.

A. In Germany?

Q. In Germany, yes, after 1933.

A. Yes, all right. Here then, we would be faced with terrible problems with which all of us since last year have been torturing ourselves so terribly, and I confess that in spite of having thought about it a great deal, that I have not yet found my way out of the dilemma into which we have been brought. Perhaps I can answer this hypothetical question by saying, by stating first, the points of view which in a conflicting manner make the answer more difficult. Perhaps first of all I should say, so that this should be clear, Mr. Prosecutor, how I, myself would behave. I don't know. No matter how horrible the whole thing is, I don't believe that I -- well, the Charter of the
International Military Tribunal anticipates that an appeal to higher orders should not be admissible. It is not my task to criticize those regulations. However, perhaps I may be allowed to say that this regulation, if it should really be valid law in any state whatsoever, would have very dangerous consequences for order in general. One of the four judges of the IMT, the French judge, Donnedieu De Vabres, in a lecture which he gave this last April expressly stated that this regulation brings with it many difficulties for the idea of the discipline imposed by the state. I have the text of his lecture here. It is a lecture which Professor Donnedieu De Vabres gave before the Association des etudes, Internationales Criminologiques. May I quote a short passage from it? May I read it in French?

THE INTERPRETER: Yes, you may.

WITNESS JAHRREISS: "Since the statute was interpreted this way under the rules imposed by the IMT, it has in a sense of individualism gone beyond regulations of international law and domestic law, this regulation is open to the objection that it will endanger the necessary discipline for the preservation of the state. Such a regulation can be applied in the future only with prudence and circumspection." I am quoting this here only in order to demonstrate that if any rules exist at all, a certain harshness is absolutely necessary, unavoidably necessary. I always told my young students who started out on a study of law that they would have to devote themselves to perhaps the most bitter fact in life of man, and that is the rule, because by nature man hates the rulership at least if he is subjected to it, but if this is the case every state basically has to require that its laws are executed, even if the person concerned, for moral or religious reasons, or other reasons, is of a different opinion. On the other hand, Mr. LaFollette, every state knows that there is some limitation somewhere. For example, the German Reich had a military penal law. In it there was the quoted article 47. In the jurisdiction of the Reich court, however, this paragraph was applied more and more in a restricting sense because discipline had to be above all.

Now, Mr. Prosecutor, before the IMT, I, in the expert opinion which I gave, which you were kind enough to quote here, stated expressly and emphatically, I believe, what the limit of humaneness or humanity is, but at the same time I pointed out that this limit is frequently not sharply drawn; and I believe, and this comes closer to your question, that perhaps after all the problem with which we are concerned here cannot quite be done justice to, if a case is described quite as drastic as you just said.

Last year during the first 4 months of the trial I experienced it, and those were the most difficult times of my entire life. I experienced and saw what terrible things happened under Hitler's regime, and I have no way to express my horror and to describe this sufficiently in any language, but I believe that you will agree with me if I say that those are occurrences which are outside of legal discussion entirely, for, Mr. Prosecutor, even about injustice one can, if one is exact, speak with legal reasons only in cases where -- excuse me - the injustice is within normal limits.

I myself was a criminal judge. One single murder frequently, in the court of assize, occupied our time for 2 to 3 weeks, and it was a terrible thing. Two murders by one person -- that was horrifying. If someone had eight to ten murders on his conscience, then he was described as a mass murderer in the press of Europe, and people asked themselves whether this was something that could be handled by means of the penal code at all.

When, last year, in the courtroom of the big trial I listened to the witness, Hoess, of Auschwitz, when he answered the question of the prosecutor as to how many people he had killed, if I remember correctly, he answered he didn't remember exactly whether two and a half or three million. At that time it was quite obvious to me that neither positively nor negatively this had anything to do anymore with legal considerations because, Mr. Prosecutor, no matter what a state regulates concerning the question of review of a law the state has to think of normal conditions. These occurrences and matters cannot be measured by any order of the world at all. Therefore, I believe that these things that happened in Germany behind a complicated system of secrecy, a system of mutual delimitation, and if then one adds the pressure of conscience of millions of people who felt themselves hemmed in between patriotism and hatred of the system, then the question which you put to me attains a very bitter human weight, and I can only say I don't know any way out.

PRESIDING JUDGE BRAND: In order to better understand your views which you have ably expressed, I would like to ask you a few questions. I understand your view to be that judges were obliged to obey the law of their State of Germany even though in doing so they violated a principle of international law. That is a fair brief statement, is it not, of the matter?

WITNESS JAHRRIESS: Yes. During the Weimar republic this was already uncontestedly applicable, and with the permission of the Tribunal, I read the commentary of Anschuetz to article 102.

Q. And you would apply the same principle after 1933, would you not?

A. After 1933? There was much less the question whether this was different than before.

Q. What court or tribunal ordinarily enforced the rule that judges must obey the law of their State under such circumstances? I assume the answer is obvious.

A. Excuse me. I didn't understand your question, sir.

Q. What tribunal ordinarily enforced against the judges or upon the judges this obligation to obey the law of the State even though they in doing so, violated international law?

A. I never heard that a court violated this principle so that there was no need to force the judges to conform to it. Mr. President, I never heard that a German court did not apply a Reich law because in the opinion of the court it was contrary to international law. I never heard of such a case. You see, it was entirely uncontested. The court, just in such a case, couldn't do anything but through official channels call the attention of the government to this contradiction so that the government, in accordance with its obligation under international law, would see to it that the laws were changed. Let us assume the case that the Reich Supreme Court, for example, in deciding a case had come to the conclusion that a German Reich law was contrary to an obligation of the Reich under international law. Then the Reich Supreme Court was not able to say -- the indictment is refused because the Reich law which supports the indictment is contrary to international law. The Reich Supreme Court could do nothing but either to postpone the trial and to report to the government so that perhaps changes would be made in time, but it was not even obliged to do that. It was obliged only if it did make a decision to decide in accordance with national law if it was contrary to the international law. That was the legal situation during the Weimar republic.

Q. That answers my question. The Reich Supreme Court would in proper cases lay down the rule that the lower court judge should enforce the German law even though it violated some principle of international law for which Germany as a state might be diplomatically held responsible, is that true?

A. No, that is not quite correct. I said that the Reich Supreme Court, just the same as the other German courts, in regard to this question, did not have any doubts at all, and therefore, it did not make any rules with which the lower courts had to comply. That was not necessary at all.

Q. Then the lower courts themselves recognized this rule of which you speak that they must enforce the law of the State even though it violates a principle of international law?

A. Yes, and they only had to look at the Anschuetz commentary; that said so expressly.

Q. Well, at least prior to 1918, was there any tribunal other than the court of the state which could punish the public officer or a judge, for making a decision which was contrary to international law, if it was made in compliance with the law of the state?

A. No.

Q. If the principle enunciated among other bodies by the first tribunal, the IMT Tribunal, namely, the principle of the penal responsibility of an individual officer for violations of international law, should be applied, then you have, do you not, a modification of your principle which you have stated with reference to the necessity that judges must obey the law of the state. In other words, if that principle of penal responsibility of the individual has become a part of international law, then the anomalous situation would arise where the officer, perhaps the judge, may have been required by his state law to make a decision, but may, nevertheless be responsible if any tribunal has jurisdiction to try him, for a decision contrary to international law. Isn't that true?

A. If I understood your question correctly, Your Honor, the general validity of the principles of the charter as international law could, in regard to judges of those states which require that their officials apply the law of the state as the final will, bring about tragic conflicts of conscience, for which, in my opinion, there is no indubitable legal solution at all. But, Mr. President, I do not know whether I quite understand your question correctly.

Q. I do not think I will attempt to repeat it further. I understood your position. It is true, is it not, that there was no tribunal in Germany, perhaps anywhere else, which had statutory jurisdiction to apply international law in a penal proceeding against a public officer of the state who had complied with the state law?

A. Yes, that is correct.

Q. Then, if there were a tribunal that had jurisdiction to apply that law, might it not perhaps, arrive at a different decision, legally, from the decision which this court of the state itself, would arrive at; might not an international tribunal, having jurisdiction to pass upon the question, arrive at a different answer as to criminality of an individual officer who had violated international law, but had not violated the law of the state?

A. Yes, that would be so, but, Mr. President, if I may say so, that is the very thing which I call the tragic situation of the official concerned.

[1] Complete testimony is recorded in the mimeographed transcript, 25-26 June1947, pages 4253-4364.
[2] Reference is made to the Law Concerning the Head of the German Reich, 1 August 1934 (1934 Reichsgesetzblatt, pt. I, p. 747). This law reads as follows: "Article 1. The office of the Reich President is herewith united with that of the Reich Chancellor. Therefore, the prerogatives hitherto held by the Reich President are transferred to the Fuehrer and Reich Chancellor, Adolf Hitler. He determines his deputy. Article 2. This law becomes effective from the time of the death of Reich President Hindenberg." Hindenberg died on 2 August 1934. This law was signed by Hitler and 14 Reich ministers.
[3] This act is reproduced on p. 163.
[4] Article 53 reads: "The President of the Reich appoints and dismisses the Chancellor of the Reich and, on the latter's recommendation, the ministers of the Reich."
[5] Article 54 reads: "The Chancellor of the Reich and the ministers of the Reich require the confidence of the Reichstag in the administration of their office. Any one of them must resign should the confidence of the Reichstag be withdrawn by an express resolution."
[6] Article 50 reads: "All orders and decrees of the President of the Reich, including those relating to the armed forces, require for their validity the countersignature of the Chancellor or the competent minister of the Reich. The countersignature entails the undertaking of responsibility."
[7] Article 76 reads "The constitution may be amended by legislation. But decisions of the Reichstag as to such amendments come into effect only if two-thirds of the legal total of members be present, and if at least two-thirds of those present have given their consent. Decisions of the Reichsrat in favor of amendments of the constitution also require a majority of two-third of the votes cast. Where an amendment of the constitution is decided by an appeal to the people as the result of a popular initiative, the consent of the majority of the voters is necessary.
Should the Reichstag have decided upon an alteration of the constitution in spite of the objection of the Reichsrat, the president of the Reich shall not promulgate the law if the Reichsrat, within 2 weeks, demands an appeal to the people."
[8] Article 102 reads: "Judges are independent and subject only to the law."
[9] The problem referred to by the witness was briefly the following: The value of the German currency having fallen to a very small fraction of its prewar value, debtors were able to pay off debts by paying, in terms of purchasing power, only a small fraction of the original debt. This brought hardship to many creditors. Hence, the question was whether, under the doctrine of "unjust enrichment," or under some similar doctrine, or by virtue of special legislation, these debts, particularly toward creditors in the lower economic strata, should be "revalued."
[10] Article 48, paragraph 2, reads: "Where public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take the measures necessary for their restoration, intervening in case of need with the help of armed forces. For this purpose he is permitted, for the time being, to abrogate either wholly or partially the fundamental rights laid down in articles 114, 115, 117, 118, 123, 124, and 153." The articles subject to temporary suspension are quoted in the footnote to the decree of 5 February 1933, the first decree reproduced in section B. preceding.
[11] Article 43 reads: "The president of the Reich holds office for 7 years. Reelection is permissible
"The president of the Reich may, upon the motion of the Reichstag, be removed from office before the expiration of his term by the vote of the people. The resolution of the Reichstag requires to be carried by a two-thirds' majority. Upon the adoption of such a resolution, the president of the Reich is prevented from the further exercise of his office. Refusal to remove him from office, expressed by the vote of the people, is equivalent to reelection and entails the dissolution of the Reichstag.
"Penal proceedings may not be taken against the president of the Reich without the consent of the Reichstag."
[12] The "red folder" contained the order of the Reich President dissolving the Parliament (Reichstag). In some instances, the Reich Chancellor would bring the "red folder" with him to a session of the Reichstag, thus indicating that the Reich President had already signed but not yet promulgated the order dissolving the Reichstag and making it clear to the Reichstag that an adverse vote would lead to the dissolution of the Reichstag.
[13] Paragraph 3 of article 48 reads: "The President of the Reich must, without delay, inform the Reichstag of any measures taken in accordance with paragraph 1 or 2 of this article. Such measures shall be abrogated upon the demand of the Reichstag."
[14] Article 4 reads: "The generally recognized rules of international law are valid as binding constituent parts of the law of the German Reich."
[15] Article 4 is quoted in footnote immediately preceding. Article 45, paragraph 3, reads: "Alliances and treaties with foreign states which refer to matters in which the Reich has legislative power require the consent of the Reichstag."

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Post by walterkaschner » 15 Feb 2005 05:46

Thank you, David Thompson, for this highly interesting post, at least to the professional lawyers amongst us. It has induced me to vow to read in toto the record of what purports to be (I haven't read it yet) the entire proceedings of the "Justice Case", which can be found on line in the Mazal Library at:

I was particularly struck by the following exerpts from Professor Jahrreiss' testimony:

Q. [By Presiding Judge Brand] If the principle enunciated among other bodies by the first tribunal, the IMT Tribunal, namely, the principle of the penal responsibility of an individual officer for violations of international law, should be applied, then you have, do you not, a modification of your principle which you have stated with reference to the necessity that judges must obey the law of the state. In other words, if that principle of penal responsibility of the individual has become a part of international law, then the anomalous situation would arise where the officer, perhaps the judge, may have been required by his state law to make a decision, but may, nevertheless be responsible if any tribunal has jurisdiction to try him, for a decision contrary to international law. Isn't that true?

A. If I understood your question correctly, Your Honor, the general validity of the principles of the charter as international law could, in regard to judges of those states which require that their officials apply the law of the state as the final will, bring about tragic conflicts of conscience, for which, in my opinion, there is no indubitable legal solution at all. But, Mr. President, I do not know whether I quite understand your question correctly.

Q. I do not think I will attempt to repeat it further. I understood your position. It is true, is it not, that there was no tribunal in Germany, perhaps anywhere else, which had statutory jurisdiction to apply international law in a penal proceeding against a public officer of the state who had complied with the state law?

A. Yes, that is correct.

Q. Then, if there were a tribunal that had jurisdiction to apply that law, might it not perhaps, arrive at a different decision, legally, from the decision which this court of the state itself, would arrive at; might not an international tribunal, having jurisdiction to pass upon the question, arrive at a different answer as to criminality of an individual officer who had violated international law, but had not violated the law of the state?

A. Yes, that would be so, but, Mr. President, if I may say so, that is the very thing which I call the tragic situation of the official concerned.
[My emphasis.]

If indeed under the Weimar Constitution, the Enabling Act and other laws adopted during the Third Reich the prevailing law was such as stated by Professor Jahrreiss (as to which I have no competence to judge), then one would have to agree with him that the situation could give rise to "tragic conflicts of conscience, for which, in my [Jahrreiss'] opinion, there is no indubitable legal solution at all." [My emphasis] But there is at least one non-legal solution which leaps to mind, and that is simply - resignation. And to the shame of the German Judiciary, there seem to have been precious few, if any, German judges who availed themselves of that solution. Of course it could well be that most of those judges who might have been so inclined were at best dismissed, or even more severely treated, by the Nazi régime. It would be interesting to know what percentage of non-Nazi, pre-1933 German judges, remained in office voluntarily after the Nazi takeover until retirement.

Regards, Kaschner

Regards, Kaschner

David Thompson
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Post by David Thompson » 15 Feb 2005 06:19

Thanks, Walter. I agree with you about the resignation option as well. There are deeds which should be shunned by honorable men, whether the state makes them legal or not. This is just as true today as it was during the Third Reich.

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Post by walterkaschner » 15 Feb 2005 08:12

David, it may be more true today than under the Third Reich, where history and conditions were light years away than those confronting those of us who are blessed to live in lands where far different and more humane attitudes and easier circumstances exist and the consequences of dissent are nothing similar to those then and there prevailing. I guess I'm existentialist enough not to be too sure what I myself would have done had I been, for instance, in Franz Schlegelberger's position. I like to think that I would have resigned early on, but one never knows until confronted in reality with the agony of decision. On the other hand, I feel reasonably confident that I could not have stomached under any conditions the actions which some of the other defendants were found guilty of.

BTW, I've now had a chance to review the materials included in the Mazal Library, and to my profound disappointment find they are by no means complete, and contain only some 10% or so of the complete record. So I triple my thanks to you for providing us with Professor Jahrreiss' testimony in haec verba.

Regards, Kaschner

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