DR. FRANZ GÜRTNER
Reich Minister of Justice
It is sometimes said, even by critics usually endeavouring to be objective in their judgments, that National Socialism has abolished law in Germany and has substituted arbitrariness in its place. Those who hold that view must be completely ignorant of the principles maintained by National Socialism and of the conditions actually existing in Germany. The new German State is based upon the axiom that law is one of the main pillars supporting the solidarity of the nation and the political structure representing it. More than that, a conception of law deeply rooted in the nation’s life and recognised as binding by every citizen is the foundation of the country’s entire civilisation.
Seeing that law and justice are at the root of every activity carried on in the new Germany, it follows that the National Socialist State is a constitutional State in the best sense of the term. That term, however, must not be interpreted in accordance with the doctrine which demands that the interests of the individual must be regarded as the principal subject-matter of all legislation and that a comprehensive system of controls must be established to protect the individual against an excess of interference on the part of the State. That doctrine is no longer upheld in Germany. National Socialism looks upon the community of the nation as an organisation which has its own rights and duties and whose interests come before those of the individual. When we speak of the nation, we do not confine ourselves to the generation to which we happen to belong, but extend that term so as to comprise the sum total of the generations that have preceded us and those that will succeed us. This view has found expression in the National Socialist doctrine asserting that “the needs of the commonwealth take precedence of those of the individual.” It dominates National Socialist policy, and its natural corollary is that the rights of the individual must be subordinated to those of the community. The protection enjoyed by individuals is not based on the assumption that their particular rights are sacrosanct and inviolable, but rather on the fact that all of them are regarded as valuable members of the national community, and therefore deserve protection. The reason, therefore, why the National Socialist State can justly claim to be called a constitutional State is that its laws are intended to promote the interests of the community, that – in pursuance of the confidence that forms a connecting link between the rulers and the ruled – every citizen can rest assured that his claim to justice will be satisfied, and that everyone who loyally fulfils his duties towards the community can look forward to receiving an equal measure of loyalty from the organs of the State. The political and economic development of the past four years has convincingly shown that we are doing our utmost to provide a secure basis of existence for everyone. Everywhere, waste land is turned into productive soil. Millions of citizens who had been haunted by the spectre of unemployment for months and even years, have been supplied with work. Unceasing endeavours are made by the National Socialist Government to strengthen the defence forces of the country and thus to safeguard the life and work of every citizen.
The National Socialist ideas on justice differ fundamentally from those prevailing under the preceding regime. Their translation into practice is an arduous task, because it involves a twofold necessity. First, a large amount of new legislation has to be passed; and secondly, the persons who are to administer justice in conformity with the new spirit have to be educated for their work. Much has been done in both respects, but more remains to be done. Nevertheless, the achievements of the past three years sufficiently indicate the line that has been followed.
A correct appreciation of the changes already effected would be impossible if we were to ignore an event of truly historical importance. I refer to the unification of German law and German jurisprudence. For centuries, there had been no such thing as uniform German law. Each federal State had its own legal system, its own courts of law and its own legal authorities; and although an outward appearance of unity had gradually been established, to a limited extent, by certain acts of national legislation, the law continued to be administered in the name of the individual States, and not in that of the Reich. For many years, that state of things had been the subject of much regret on the part of many Germans, but a radical change proved unworkable because each State jealously guarded its special rights and privileges. National Socialism, among many other matters, stands for a unified Reich and for a uniform legal system. It does not allow obsolete privileges to block the road to progress and has therefore boldly abolished them. All the States have been made subordinate to the superior authority of the Reich. In that way, the separate judicial systems have been done away with, and all German courts now administer justice in the name of the Reich. The practical importance of this great change – the inauguration of which dates from April 2nd, 1935 – cannot be overestimated. The administration of justice and the enactment of new laws are now vested in one single hand, viz., in that of the Reich Minister of Justice. The experience gained by the courts in the course of their everyday work can now be made directly accessible to the superior authorities and can thus be utilised for purposes of legislation. Moreover, the uniform organisation of all juridical authorities throughout the country renders it possible to acquaint all of them with the intentions of the legislator without having recourse to roundabout methods. To the general public, the old system was a source of endless vexation and difficulty owing to its great diversity; but all these difficulties have now disappeared. It is indeed no exaggeration when we say that by unifying the administration of justice throughout the country, a century-old longing of the German people has been fulfilled.
It goes without saying that the legal position of the judges has not been affected in any way by this great change. In his speech to the Reichstag on March 23rd, 1933, the Leader and Chancellor solemnly affirmed their independent and irremovable status; and similar declarations have been repeatedly made since then. Such independence has always been an integral part of German thought and feeling and is inseparably connected with our views on a constitutional State. In National Socialist Germany, the office of judge is outside the domain of the authority wielded by the State and is thus different from all other offices held under the Government. This does not alter the fact, however, that the exercise of the judicial functions is now undergoing a change. Unlike the common law of England, German law is – for the most part – a form of “written” law. The judge is required to make his decision by reference to the particular paragraph of the code that deals with the case before him. In the past, this necessity often had for result that the judgments given – although they conformed to the letter of the law – failed to pay adequate regard to the facts of real life. The National Socialist State does not intend to absolve judges from the necessity referred to, but expects from them that they will interpret the wording of the law in accordance with the underlying principles, and that they will apply these principles in such a manner as to do justice to the vital needs of the German people. To enable the judge to satisfy this demand, he must be closely and permanently associated with the spirit that pervades the new Germany and of which he is to be the living embodiment. Only then will he be in a position to give voice to the faith of the whole nation in the supremacy of the law. This, at least, is our ideal of what a judge should be. It is the aim before us in training young men for the office of judge. We have accordingly reorganised that training and trust that it will not only furnish students of law with the necessary professional knowledge, but will also familiarise them with the foundations of the nation’s racial life, so that they can exercise their high office in the sense just indicated.
Another important factor in connection with the administration of justice in the National Socialist State is the lawyer. We expect of him that he looks upon it as his duty not only to represent the personal interests of his clients, but also those of the whole nation, so that true justice may be vindicated. German lawyers have fulfilled this expectation, and have gained the confidence of the nation and its courts to an extent formerly not always existing. The underground influence of unqualified advisers on legal matters has been largely checked by the National Socialist Government. Nobody is allowed to give legal advice in a professional capacity unless he is in possession of a Government licence; and such licence can only be obtained by those who have the necessary qualifications as laid down by law.
Criminal law and the methods of criminal procedure have undergone very considerable changes compared with the conditions existing before 1933.
It had become more and more customary during the post-war period to pay excessive attention to the personality of the criminal, to discover extenuating circumstances explaining his action, and to ignore the interests of the community and those of the injured. Consequently, a state of things had grown up in some parts of the country under which the infliction of the standard punishments prescribed by the law was almost the exception, whilst the application of extenuating circumstances or even a free pardon became almost the rule. In the prisons and penitentiaries, too, excessive mildness prevailed, and the life of the prisoners was made far too comfortable. The constant increase in convictions prior to 1933 proves that this system did not tend to add to the efficiency of the fight against the prevalence of crime. A knowledge of these conditions is necessary if we wish to adequately appreciate the work achieved by National Socialism. The Government desires to give effective protection to the community as well as to the individual against the activities of the criminal element and has taken suitable steps to ensure that chief attention shall be paid to the interests of the community when the penalties to be inflicted are fixed. It is considered unlikely that any system of education will produce satisfactory results in so far as adult criminals are concerned, and the sentences pronounced are therefore made sufficiently heavy to deter criminals from committing further crimes. In addition, due reparation is to be made for the moral injury done to the community by every act of crime. Under the present system of executing the sentences, the deterrent influence of the punishment receives once more the recognition it deserves. As it is our aim to afford the largest possible measure of protection to the community, we have created special facilities for the judge that will enable him to inflict additional penalties upon those criminals who may be reasonably regarded as permanent dangers to the community. The judge is now in a position to order that habitual criminals shall be kept in custody after they have served their sentence. Persons who regularly misuse their trade or profession for the commission of crimes can be deprived of the right to exercise that trade or profession. Finally, persons who have proved to be habitual offenders against morality can be sterilised by order of the judge.
The methods of criminal procedure have been expedited as much as possible. Steps have also been taken to make it difficult or impossible for the accused to prolong the course of procedure for the purpose of adding to the difficulty of ascertaining the truth. No restrictions, however, have been placed upon the right of the accused to be represented by counsel. Thanks to these measures we have found it possible in many cases, e.g., offences against traffic regulations, acts of violence, etc., to make the punishment follow the crime without the least avoidable delay. I need not point out that this system has materially enhanced the respect for the law and for those who administer it and that it has increased the general feeling of security.
The process of transformation through which the German people are passing at the present juncture is one of historical significance. It is but natural that any attempts made to obstruct that process deserve particular attention. Special tribunals have therefore been created to deal with them. These, however, have no exceptional powers conferred upon them, but are ordinary courts like all others set up by our law. High treason and similar crimes go before the People’s Tribunal, which is one of the high courts of the country. It is composed of professional as well as experienced lay judges, these latter having the same judicial powers as their professional colleagues. Like all other German courts, the People’s Tribunal and the judges composing it are of independent status. The procedure to be applied is the same as that applied to all other criminal cases, and the accused has the right to make use of all the possibilities ordinarily available for his defence.
As regards its material aspect, too, criminal law has undergone a number of important modifications during the past three years, but space forbids their description in detail. I would like, however, to direct attention to a clause added to the criminal code by the Law passed June 28th, 1935, as it is of especial importance. It abolishes the maxim according to which no offence can be punished unless it is specifically mentioned in the existing code, and enables the judge to inflict punishment for acts which – although not thus specifically mentioned – are yet of such a nature as to demand punishment in pursuance of the general tenor of the law and in accordance with healthy national sentiment. Thus, the “written” law has ceased to be the sole source of our knowledge of right and wrong, although it will continue to be the principal source. The legislator realised the impossibility of making the provisions of “written” law so comprehensive as to cover all conditions actually met with, and thus adopted a principle with which the British people have been familiar from time immemorial, as only a small part of English law is “written.” By far the greater part of it is derived from ancient usage and is known as “common law.” In our country, the question of right or wrong used to be exclusively decided in conformity with the wording of the law; but this formal view has now been replaced by the material one, according to which any act detrimental to the interests of the community or conflicting with them is liable to punishment. We believe that the respect for the law will become all the greater the more we absolve the judge from the necessity of taking the letter of the law for his guide and the more we enable him to base his decisions upon its living spirit.
I can only make brief reference to the innovations incorporated in our civil law and the procedure to be followed in civil cases. Although no fundamental changes can be recorded so far in these domains, certain defects have already been eliminated from them. Thus, the National Socialist State has taken care to ensure that all unnecessary delay shall be avoided and that the claims of the parties are to be settled as speedily as possible. Certain obsolete formalities in connection with the swearing-in of the litigants have been abolished and a more elastic system – not unlike the method used in England – has been introduced instead. Special attention has also been paid to forced sales. Economic developments made it necessary to place restrictions upon the rigorous application of the rules governing such sales whenever it would ruin the economic existence of the debtor and damage the interests of the community. In every case, however, efforts are made to arrive at a fair adjustment of the conflicting interests of creditors and debtors.
Among the numerous laws promulgated during the past three years in the domains of civil and economic legislation there are a few that deserve special mention. Thus, the rights individual owners of real estate might have in respect of adjoining property, have suffered a certain curtailment in favour of institutions that are of particular importance to the community. As to patent legislation, the protection granted to the inventor has been extended and his professional honour has been specially recognised. On the other hand, his rights can be restricted (against payment of compensation) whenever this is necessary for the public good. Marriage licences can be refused when it is evident that the parties have no real intention to contract marriage in the usual way, but merely desire to secure some external advantage that might be derived from marrying. Adoption is prohibited whenever it is merely intended to serve some trivial purpose, e.g., the right to a fine-sounding name, etc.
By way of conclusion, I should like to mention two instances aptly illustrating the responsibility which the law feels it owes to the new Germany. Thus, a standard form of lease agreement has been drawn up, with the collaboration of the Ministry of Justice, by the organisations representing landlords and tenants respectively. Its terms embody a fair adjustment of the interests of both sides and are not merely such as to serve exclusively those of the economically stronger party.
The other instance concerns an arrangement which we call, “Legal Guidance for the People.” Those administering the law are not only anxious to repair the damage done by breaking it, but also to prevent it from being broken at all, whenever this is possible. To that end, the experience gained by the courts from day to day is collected and made available to the whole people.
The foregoing account shows that-in the administration of the law as in other matters – the National Socialist Government is determined to protect the peaceful development of the German nation and to promote it to the best of its ability.