Chapter 41

“Today I am transmitting to you an open letter to the Fuehrer along with draft of the decree requesting them to the Fuehrer.“Copies for your files are attached.”

“Today I am transmitting to you an open letter to the Fuehrer along with draft of the decree requesting them to the Fuehrer.

“Copies for your files are attached.”

Then on the same day, 6 May 1942, you wrote to Hitler, and you started the letter, “My Fuehrer,” and you stated, among other things:

“If you, my Fuehrer, could decide by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved.”

Then it lists a technical analysis of the decree, as you see it. Then I go to the last paragraph of your letter addressed, “my Fuehrer,” of 6 May 1942, which reads in the English text:

“Therefore, I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will not lead to complaints any more.”

Now that followed the speech of Hitler on 26 April 1942. Do you recall writing that letter?

A. Yes.

Q. On 12 May 1942, in this same exhibit and document, you write again to Dr. Lammers, and this time you say:

“Dear Reich Minister Dr. Lammers:“With regard to your request, I am sending you today some material from which, I think, follows that a Reich Minister of Justice controlling criminal justice cannot dispense with the possibility not to confirm a sentence. I may add that when the draft of the decree was already under way to you, Reich Marshal Goering explained to me in detail at a visit in Karinhall that he in the sphere of Wehrmacht justice, sector Luftwaffe,could only overcome the difficulties of heterogeneous legal administration by this confirmation, and that in his opinion it was definitely necessary to introduce the confirmation also for civil justice.”

“Dear Reich Minister Dr. Lammers:

“With regard to your request, I am sending you today some material from which, I think, follows that a Reich Minister of Justice controlling criminal justice cannot dispense with the possibility not to confirm a sentence. I may add that when the draft of the decree was already under way to you, Reich Marshal Goering explained to me in detail at a visit in Karinhall that he in the sphere of Wehrmacht justice, sector Luftwaffe,could only overcome the difficulties of heterogeneous legal administration by this confirmation, and that in his opinion it was definitely necessary to introduce the confirmation also for civil justice.”

Then I am going to skip a sentence and I’d like to read the last paragraph of the letter:

“I would be especially grateful to you, dear Reich Minister Lammers, if you would present the matter to the Fuehrer again. I have the hope therewith that, if the Fuehrer rejects the present handling of criminal justice, and on the strength of your argument, knows that the confirmatory proceeding is the only and safe remedy, he will not withhold this remedy from the Reich Minister of Justice.“With best wishes and Heil Hitler,“Yours very sincerely, signed Dr. Schlegelberger.”

“With best wishes and Heil Hitler,

“Yours very sincerely, signed Dr. Schlegelberger.”

As I recall your testimony, it was that Hitler had been very abusive to you in his speech of 26 April 1942, and that after that you had made up your mind to resign. Is that what you testified to?

A. Yes. I have said that I wanted to make it clear whether these attacks were directed against the administration of justice, and in that case I was determined to let matters drift toward a break and to withdraw from my office.

Q. Now I know that you said in 1941 that Goering had said to you that he would never forgive you and Dr. Guertner for centralizing justice, is that correct?

A. Yes.

Q. And now when you desired to have a conversation with Goering, would you go to Karinhall or would he come to the Reich Ministry of Justice, as a rule?

A. No, no. In such cases when Goering wanted to speak to me, he called me up and asked me to come and see him. Goering at that time dealt with a case in which he wanted to have a legal opinion. That was why he wanted to talk to me. On that occasion, we came into that conversation.

Q. Did Goering agree to support your plan at this conversation you had with him between 6 and 12 May 1942, or do you recall?

A. I take the liberty to explain that. I told him what my plan was, and he told me, “But that is the only possibility to handle these things.” [He said] I could not get anywhere in my field if I did not have that right of confirmation.

Q. Now in May 1942—about that time during May and June 1942—Reich Marshal Goering would have had the capacity to be a very strong ally, did he not?

A. That could be stated in that general way, and now in retrospect I could not state for any particular month because the relations between Hitler and Goering changed continuously. And with Goering it might have been similarly. It depended upon the question in what temper Hitler was met.

*******

TRANSLATION OF DOCUMENT NG-075PROSECUTION EXHIBIT 27

CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND HITLER’S ADJUTANT, MAY AND JUNE 1942, MENTIONING THAT HITLER HAD CONSIDERED “NOTEWORTHY” THE ROTHENBERGER MEMORANDUM ON JUDICIAL REFORM

The Reich Minister and Chief of the Reich Chancellery

Reich Chancellery 6837 B

Fuehrer Headquarters, 11 May 1942

Subject: Memorandum regarding judicial reform

1. When I reported to the Fuehrer on 7 May, the Fuehrer informed me that he had received a memorandum regarding a judicial reform from a well known lawyer which appeared noteworthy to him. He will arrange to have this memorandum sent to me.

2. On 8 May, State Secretary Dr. Schlegelberger casually remarked, while visiting me, that he believed that the memorandum which the Fuehrer mentioned was drawn up by the president of a district court of appeal, Rothenberger.

3. Miss Buege: Enter (Rk.) Letter remains here.

4. To the personal adjutant of the Fuehrer Major General Schaub.

Fuehrer Headquarters

Dear Mr. Schaub,

The Fuehrer told me when I reported to him on 7 May, that he had received, sometime ago, a memorandum regarding a judicial reform from a well known lawyer, which appeared to him worthy of consideration. The Fuehrer did not mention the name of the lawyer. The Fuehrer promised to have this memorandumsent to me. I should be much obliged to you, if you would take care of this matter.

Heil Hitler!

Yours obediently

(Name of the Reich Minister)

5. Resubmitted on 25 May 1942.

[stamp] Resubmitted

Office 25 May

[Handwritten] see Reich Chancellery 8230 B

[Initial] L [Lammers]

Reich Chancellery 8230 B/ 8 June 1942

1 enclosure

The Fuehrer and Chancellor of the German Reich

CS—The Personal Adjutant

NSKK—Major General A. Bormann[260]

Berlin W 8, Reich ChancelleryFuehrer Headquarters, 7 June 1942

[Initial]Kr[Kritzinger]

To Reich Minister Dr. Lammers

Berlin

Subject: Reich Chancellery 6837 B

My very dear Reich Minister:

In reply to your letter of 11 May, addressed to SS Gruppenfuehrer Schaub, enclosed please find the memorandum which you requested concerning the judicial reform drawn up by President of Senate Dr.Rothenberger, Hamburg.

Heil Hitler!

[Signed]A. Bormann

Personal Adjutant of the Fuehrer

Certified: [Signed]Schroeder

Enclosure

Reflections on a National Socialist Judicial Reform

Since 1914 the world has found itself in one of the greatest revolutions of history. National socialism, which was born during the First World War, is the pivotal point of this revolution. Having welded the German nation together politically from 1918 to 1933 into a national community it is about in the present World War to “organize” Europe anew and to create a new world philosophy. It goes without saying that during such a “world revolution” certain fields of human endeavor cannot keep pace. Among such fields belongs, in particular—along with all the arts and sciences—jurisprudence. The first decisions in history were always made by men and nations in the elementary struggle for power. But the aim of this tremendous reorganization of the world is that for the first time in history not power, but justice will be victorious. In periods of transition this justice must prevail in different ways from the ways it chooses in untroubled times of peace. The scope of a peacetime administration of justice is often too narrow to do justice to present events. Thus, a historical revolution such as the present one will, of necessity, bring about a crisis in law, and particularly a crisis in the administration of justice; and the extent and intensity of this crisis depend on the extent of the revolution. A crisis is customarily defined as a state of the most violent intensification of the symptoms of a sickness, which is followed by a decisive turn, either toward the worse, to final descent—death in the case of man, and dissolution in that of a public institution—or the pendulum swings to the other side after the climax of the crisis, toward recovery. The present crisis in the administration of justice today is close to such a climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist’s salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution.

What is the present state of German justice? Complete and clear fronts are drawn—on the one side are all the activist forces in Germany, particularly the old guard of the Party, to whom today’s justice is a hindrance in the pursuance of their aims. Natural friction occurs daily between elementary law, such as it is experienced by the activists, and the law as it is administered by the legal authorities of today. In every German village, and in every German city, modern jurisprudence, as the representative of the law, especially the judge and his verdict, have losttheir influence considerably in the ancient struggle between might and right. We find that the pronouncement of justice does not enjoy in our totalitarian state the authority it deserves. On the other side are the representatives of justice who complain about this condition, namely, about the extensive elimination of judicial procedures; the lack of authority of the verdicts; the revision of lawful judicial sentences by police measures; the dwindling confidence of the people in their judges; the slight regard generally accorded the judges’ position in the press, on the air, and in films, etc. The German judge, the true representative of justice, stands alone and unprotected, presuming upon his so-called independence, above all, justice; and the German judges have hitherto not succeeded in gaining theconfidence of the Fuehrer. It is true, German justice has become, organizatorially speaking, a united Reich justice, and all efforts are being made to create a National Socialist justice. Jurisprudence strives—if only with varied success—to fit into the National Socialist ideology. A close relationship based on trust, however, does not exist between the Fuehrer and German justice, nor between the German nation and the NSDAP which represents the people on the one hand, and German jurisprudence on the other. This distinguishes the present crisis from all the previous ones. The fact that jurisprudence has been greatly criticized at all times lies in the very nature of the problem. It has even been stated that criticism follows the pronouncement of justice as inevitably as the shadow follows the body. From all periods of history, and from all civilized countries, cases can be cited which originate in the excitement over an injustice which a judge may have done to a person (Plato’s Apology; Voltaire’s writings in connection with the trial of Calas; Zola’s J’accuse). He who goes to the judge believes that he is in the right. If he triumphs, he considers it a matter of course; if he is defeated, he thinks he has been wronged. However, the present condition is basically different. Justice today cannot turn to anyone. It has not gained so far the confidence of the leaders nor that of the NSDAP, and it is about to lose the confidence of the people. But without such confidence, without a connecting link with the leaders and with the people, justice is condemned to a final decline. It requires this confidence as man requires the air he breathes, in order to be able to live.

III

In a situation of this nature those who are responsible for the administration of justice have a historical responsibility—self-recognition. There is a painting by Raphael in one of the rooms of the Vatican, the “Stanza della Segnatura,” which represents the goddess of justice [Justitia] with her three genii—the genius oftruth, holding her torch on high; the two-faced genius of wisdom; and her third companion, holding up a mirror to the goddess, the genius of self-recognition. Why does the Fuehrer, the Party, and the people criticize the administration of justice? What are the causes? What suggestions can justice itself make to the Fuehrer, in order to eliminate this condition?

1. Occasionally, the opinion is expressed that an authoritarian state can toleratenostrong judiciarywhatsoever. The dynamics of national socialism exclude, it is said, the static which is the very essence of justice. The independent judge is a sad remnant of a liberalistic epoch, and there is no real justification for a separate ministry of justice in addition to a national ministry of the interior and the police. Also the National Socialist Reich came to power without the support of law; indeed, it did sodespitethe law. Consequently, it can solve its future problems without the help of the law, or at least without a strong legal system. History shows time and again—and the period since 1933 has confirmed it in many spheres of public life—that progress is a series of contradictions. White follows black. It is understandable that many old Party comrades raise the cry: fight against the judgeper se; and they do so as a reaction against the legalistic state of the 19th century, against the neutral, unpolitical administration of justice, against judges who were trained unpolitically, who were taught to follow closely to the letter of the law, and whose independence finally resulted in the separation of the people and the state. Two aspects of this reaction are valid.

a.The bourgeois-liberalistic state which, under the influence of the doctrine of the division of power, empowered the courts to control legislation and administration, has finally been superseded by the unity of the Reich. The courts are merely an organ of the state, as the arm is only a limb of the human body. However, this arm can never set its own head aright. Law mustservethe political leadership. Justice is not control of the leadership, neither is it protection of the individualagainstthe state; rather, it is a function of the community which should serve toregulatethe community life. The functions and the jurisdiction of the judge, in particular his relation to other departments, will therefore have to be redefined. But before this decision is reached, which is of such far-reaching consequences for the entire development of our Reich, the administration of justice itself has to be reformed radically in the interests of the Reich itself. This decision must not be influenced in any way by the experiences which the leadership has had with the law during the past 10 years. Otherwise, the danger exists that an unorganic and planless undermining from within, and a gradual fragmentation of the administrationof justice will occur—as they have already set in, because the administration of justice has failed. The criterion, however, for the functions of justice and particularly of the judge in the National Socialist Reich must be a justice which meets the demands of national socialism. Therefore, suggestions must be submitted to the Fuehrer which clearly define what such a justice, and particularly a National Socialist judge, must be like.

b.In the second place, this reaction of “antagonism toward law” is justified because thepresent momentabsolutely demands a rigid restriction of the power of law. He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand all outmoded institutions, concepts, and habits have been done away with—if need be, in a brutal manner—and if, on the other hand institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situation. The question is solely: Is a strong judiciary incompatible with the National Socialist authoritarian state (Fuehrerstaat)per se, that is, permanently, or onlytemporarily?

2. He who is used to thinking along historical lines and who understands the essence of national socialism will have no doubts as to the answer. Justice has at all times been the strongest pillar of every great civilized state. Great empires fell when despotism and corruption took the place of justice and of order; great empires rose to heights beyond imagination when the central figure, the actual creator, the embodiment of the concept of justice—the judge—represented authority. It was accepted as a matter of course during the classical age of the Imperium Romanum that the most exalted and honored place in the state was occupied by the praetor along with the consul—not to mention the enormous cultural influence that Roman praetorian law has exerted for centuries on the whole of Europe. The judge was the highest official of the state also during the height of the British Empire. Italian fascism also recognized the importance of this question for the preservation of its empire by agreeing with me on the following propositions at the German-Italian Conference held in Vienna in March 1939.

Proposition 5

“The judge, in contrast to other civil servants, derives his authority directly from the state leadership.”

Proposition 8

“Among civil servants the judge occupies a unique position in the organization of both states.”

What a far-reaching influence was exerted on the Germanization process of the East in the early Middle Ages by the highly developed city laws, particularly by the law of Magdeburg and Luebeck! The law and therefore the judge has always been one of humanity’s most prominent representatives of civilization. Also the aim of the gigantic struggle for existence in which the German people are at present engaged is to replace power and despotism by justice and order (the new order) in Europe and the entire world. There is no order without a strong law. Likewise the inner worth of the National Socialist Reich consists in the fact that every citizen does not think of it, his Reich, as the embodiment of the interests of individual pressure groups or parties, but of his sense of justice. In the eyes of the German people, more so than in the eyes of many other peoples, justice is and remains the most treasured gift; it is not the illusion of “equal rights for all,” but is in line with the old Prussian saying, “to each his own.” The superficial view that an authoritarian state cannot tolerate a vigorous judiciary is therefore wrong. The better the inner strength of a state is consolidated, the better is justice assured and the stronger is therefore the judiciary. Only a state based on external force must be afraid of a strong judge, and history has shown time and again that nothing leads faster to self-annihilation than a paucity of laws and a feeble administration of justice. The judge is the representative of justice. It is he who in the eyes of the people is the guarantor of justice, not the professional jurist nor the public prosecutor, nor the attorney; because he, the judge, administers justice, uninfluenced by friend or foe, unbiased and unswayed by the quarrels and tendencies of the day, not prey to human foibles. With him rests the decision over life and death; he intervenes decisively in every sphere of human life and in the most treasured possessions of a people such as liberty, honor, family, work, land, etc. Here the people expect an unflinching representative of a strong law who seeks the truth and justice with intense devotion and a clear mind. Nor can a political leader, even the best, nor a Landrat nor a Gestapo official be at the same time a judge. They all perform completely different functions; they must direct, organize, plan, and look into the future. Their decisions too must be just, but the idea of justice is not the guiding principle of their vocation. They all require a counterpoise in the form of a magistrate of whom the great Ulpian says: “Priests are we, because we foster righteousness and preach the knowledge of what is good and just.”Corruption, personal selfish interests, vanity and craving for power which happen to play an important part in human life, cannot—apart from having a rigid political leadership—be better prevented than through the fact alone that a strict judiciary authority exists.

3. And this is where the awareness of their mission and the historical obligation begins for the men responsible for the German judges. They are to see that the fire of justice never quite dies not even during the most difficult times of a great world revolution. The German ideals of justice embodied in a strong judiciary must—since it is timeless—be fitted into the future construction of a National Socialist Reich. This, however, is possible only when the fire continues to glow. Political situations require constant measures of opportuneness, and every stubborn resistance to it—“on principle” or “fundamental deliberations”—is senseless. But one must be constantly aware of the danger that the very “convenient” putting aside of a regulated administration of justice conceals thetendency of habit. It is the task of a new German justice to prevent such a development. This cannot be achieved, however, by bewailing the present condition or even by resigning herself to it. She must look into the mirror and ask herself:What can I do to put at the disposal of the Fuehrer a justice and judges in which he may have confidence?

Theoretically, the constitutional position of the German judge, especially his position in respect to the Fuehrer, is not difficult to solve. Overcoming the division of power the Fuehrer is not only the legislator and executioner of power, but also thesupreme judge. Theoretically, the authority to pass judgment is therefore only his. If he could carry out this authority also in practice, there would be no more judiciary problem and no legal crisis. But he cannot do so. Therefore, he has transferred his authority to the individual judge, that is, directly without any further administrative channels. The judge acts differently from any other official who is a member of a sometimes rather long official hierarchy, by virtue of a decree issued to himdirectby the Fuehrer. This is the meaning of freedom of the bench. Every other private Party official or public office has to abstain from all interference or influence upon the judgment. This superior position corresponds to the obligations of the judge to find justice exclusively according to National Socialist ideas.Because a judge who is in direct relation of fealty to the Fuehrer must judge “like the Fuehrer.”In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and theGerman judge, that is, also in the form of a judge, the supreme judge in Germany, the “Judge of the Fuehrer.” He is to convey to the German judge the will of the Fuehrer by authentic explanation of the laws and regulations. At the same time he must upon the request of the judge give binding information in current trials concerning fundamental, political, economic, or legal problems which cannot be surveyed by the individual judge.

That only the best are considered worthy of a privileged position such as the judge holds can also be seen from another reason. The former legislation was suspicious and therefore casuistic toward the judge. It attempted to regulate every conceivable fact of law, thereby degrading the judge to a subsumptive mechanism. The Fuehrer as legislator, however, knows that a living people’s law which can be understood by every citizen and which is to reach a truly just sentence in the individual case can be established only by an elastic legislation with far-reaching opinions of the judge. The multicolored and versatile life is therefore fettered as little as possible by the law today. Every Reichsgesetzblatt teems with such general terms as—normal sentiment [of the people], dignity and etiquette, honesty, National Socialist ideology, etc. This loose binding to the law of the judge without an excellent judiciary personality is, however, a contradiction in itself and will forcibly endanger justice, unity, and security of law considerably. National Socialist free method of legislation, creation of a living people’s law, and quality of the judge therefore necessarily act and react on one another.

Repeated theoretical demands for a National Socialist personality as judge are not enough. One must recognize reasonably and clearly that the present type of judge—no reproach should hereby be made to an individual judge—in his historic development, his training, and his selection does not and cannot meet this demand. And just as reasonable are the practical deductions to be made from this.

Thehistoric development of the German judiciaryis in short the following:

At the same time at which the Roman law, which in no way whatever was connected with the German national consciousness, was introduced in Germany (15th century), the freely elected Germanpeople’sjudge was replaced by thecivil servant, the professional judge. He studied at first at Italian universities, and later—up to the present time—his method of thought was influenced by legal reasoning in accordance with Roman law. Originally he, though an alien, was nevertheless, in his capacity as thehighest official of the individual sovereigns, an authority in the country; thus, 19th century liberalism, with its hypertrophy of laws, its plethora of courts, its wild pursuit of litigation, and its juridical thinking, led to a steady increase in the number of judges, and indeed to a debasing, vulgarization, and “bureaucratizing” of the judges. In a liberal state these judges became independent simultaneously in the sense of a complete detachment from people and state. The authority of the judge can be determined by two entirely different means: Once by granting him a superior position and by letting only few qualified men with a strong personality become judges—then the authority and the so-called independence will as a matter of course come out to a certain extent as a by-product—or else the judge’s position will be formally converted under severe stress into a bureaucratic civil service position in which he will attempt to carry through his conception of law by being granted independence through legal guaranty. Prussia, and with her the rest of the German states, consequently the second German Reich, took the latter way.

National socialism will have to proceed on the first path. Because the nature of national socialism is in direct contrast to this degeneration of the old German, nonbureaucratic people’s judge which occurred historically through foreign influence. National socialism will revive the concept of German judge as prototype the same as it created the concepts of Fuehrer, followers, folk-community, honor, loyalty, farmer, soil. It will also have to clear the concept of German judge as prototype of human society from all that is foreign to him, all that has stuck to him in the course of the developments of the last centuries, and ask itself the question: What does a German mind understand by the term “judge”?

According to the concept which every German has of a German community the judge is a fundamental type of human life. Just like the farmer, the soldier, and the various types of trade, the judge too belongs to every community developed beyond the most primitive state. The characteristics of the prototype of judge are—

1. That he isindependent and not confined to directions. A judge who has to ask someone else for the sentence is just as much a caricature as a farmer without a plough and a soldier without a weapon. Upon the fact that the judge can use his own discretion is founded the magic of the word “judge.”

2. And a second item is in our description of a German community. The judge has a strong innerauthority. He is the interpreter of law who is superior to all other servants of the state in knowledge, experience, and humanity. That the German peoplehave a fine feeling for a strong, responsible, independent judge for the decision of its interests, can be seen among other things from the following: In spite of all judiciary crises and in spite of every reproach against the judges and their decisions, national socialism has never called: Dismiss the judges, we do not wish or require judges any longer! The discontented have always turned only against the present ones and have demanded better. Neither the laborer nor the farmer, neither the businessman, nor the tradesman has ever voiced the desire to appoint for the settlement of their arguments in place of a judge an official who is bound by instructions. However, something entirely different has occurred, with the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge—first of all, of course, as “judge” over their fate in general, but also as “supreme magistrate and judge.” The mail received in the Fuehrer’s office in one day would prove this. No wonder, that next to this man, the German bureaucratic judge who represents so little of long established judiciary grandeur had to lose further authority. The special interest we have in this election of the Fuehrer to supreme judge in the united Reich is the acknowledgement of thetruejudge. This does not infer a renunciation of the concept of the judges itself, as is sometimes concluded, but it does infer a renunciation of the bureaucratic judge. The spontaneous recognition of the Fuehrer as supreme judge of the German people is essentially due to the fact that the Fuehrer wholly independent, separate from any influence or person, not supported by any machine of state but solely by the loyalty of the people fights for the rights of the German people within and without its borders, that is, all qualities which personify a true judge.

3. And thirdly, there will be onlyonejudge in our community. Just imagine! There is a judge on every corner of a market place which we see before us. One feels that 3 of them are too many, while there may safely be 4 tailors, even 40. That they might not have enough work would not fundamentally disturb our imagination. But 4 judges. The symbol that there is onlyoneright, onlyonejustice as presented so clearly in the single judge, would be obliterated. One would begin to compare as in the case of 4 stores—where do I get better right? The authority of the judgment suffers if more judges than needed are present.

Practical considerations also make aradical reduction of the number of judgesimperative. During the next decades Germany simply will not have enough young students who have the requirementsfor the profession of a judge, who have the inclination and aptitude to become a lawyer, and especially a judge, in such an active period. The thorough laying off of personnel which must take place in the entire German administration after the war is even more urgent and justified in the case of judges, as this reduction is in line with the essentials of judges, they being the representatives of the onelawand the onejustice.

The historic evolution of the German judge is also in conformity with histrainingand hisselection. To decide what is right does not require constructive or scientific thinking but above all, it presupposes the art to appraise human beings, to understand human emotions and the ability to comprehend all phenomena of life. Training methods of today lead to abstract thinking, to materialism, and to an ignorance of the ways of the world. The theoretical scientific method taught nowadays in universities is apt to imbue the student after being first introduced to a juristic line of thought with abstract conceptions and with a system of logic which makes it very difficult for the student to find his way later on in a world of facts. The outcome is the abstract lawyer, subject to so much criticism who does no longer recognize human beings but only conceptions, moreover, it is also the source of ever recurring disagreements between politically trained National Socialists and lawyers. Very often there is a world of difference between them. The point from which all training reforms must go out must be paragraph 20 of the Party program, which reads:

“The curriculum of all educational institutions must be adapted topractical life.”

In detail this means—

1. Substitution of the logical, abstract method of thinking by amethod of conception taken from practical everyday life. No “lecture” with a deductive training method, given by a professor to a hundred or more “listeners,” but some kind of working community of perhaps twenty to thirty students who will be introduced inductively to the system—that is empirically from life—by a teacher endowed with scientific, practical and educational talents. These teachers are either university teachers who carry out at the same time the duties of a judge or administrative lawyer, or else judges in office who teach simultaneously at a university. The selection of about 200 qualified leaders who must be held in readiness at the end of the war for a fundamental reeducation of our youth is the most pressing problem. Only such men are able to guide the productive energies of the beginners intothe right channels, and so prevent a false, abstract education as well as the cutting of lectures and the cramming down of lessons.

2. These working communities to be established in universities must ever maintain close contact with practical work (court, administration, Party). The strict division practiced heretofore—at first 3 years’ university training exclusively, then 3 years’ practical work—has provided them with a dangerous, theoretical “preinoculation.”

3. A man who chooses to be a judge and who therefore administers justice to all phases of human endeavor must know life itself, the real and practical life. Therefore, anyone who after passing the probationary state examination, at the approximate age of 26, has worked for 2 years in the judicial sphere as a candidate with some court—as has been customary heretofore—has not the “calling” of a judge. He has only become acquainted there with a small sector of life from a very definite angle. Only he who has steeled himself and proved his mettle outside a safe civil service position shall pass judgment and decide over human lives. He may stand his test in accordance with his inclination in economic life (banking, industry, shipping, commerce, agriculture), or as an attorney who looks at the objects of justice from “another” angle, or by taking an active part in Party or administrative life either at home or abroad. The decisive factor is that the future judge has not lived his life only “behind bars.” He also must have stood “before the bars,” in real life. These requirements lead us to recognize two facts.

a.No one should be appointed a judge before the age of 35. To judge requires a ripe judgment, a certain spiritual detachment, and a very pronounced character; qualities which can hardly be asked of a 28-year-old candidate who has never had to struggle in real life.

b.No one who has acquired a life position in another profession wishes to become a judge at the age of 35, unless the following primary conditions are created:The position of a German judge must be of such high standard with regards to ideal and material rewards as to attract even the best of our youth.By anelastic legislationand thefreedom of the bench, the leadership of the State places such full confidence upon the judges—as are granted to no one else in an autocratic state—that only the best can be considered to deserve this confidence. He who has begun a thing must go on with it; if there are to be men in an autocratic state invested with the freedom of the bench, then this freedom should be granted to a few and exceedingly well qualified men only.

VII

The demand to reduce the number of judges—I reckon with a reduction from about 16,000 to about 8,000 for Germany proper—gives us the problem ofa fundamental reform of the entire organization for the administration of justice. A mere reduction of the personnel without a simultaneous reform of working methods and of the organization would not result in improving the work but only to its deterioration as is the case everywhere else in general administration. I have laid down my conception of this reform of justice in the following detailed proposals:

1. The general political satisfaction of the people and the concept of a national community of interest, which is growing more and more, will alreadyby themselvesrelieve the courts of much work.

2. Much work is done which is only in a general way connected with the administration of justice and which is more of an administrative than of a judicial nature. This work can well be done and without harmby other administrative departments. I mean herewith a large part of the work done by voluntary jurisdiction, such as recording of deeds and general registry work. The core of the administration of justice from a political point of view—that is, the administration of criminal law—must, on the other hand, remain in its entirety in the care of the judiciary as it should under no circumstances be torn and split up among several other ministries.

3. The organization of the courts, comprised at present of four levels—lower court of first level, district courts [Landgericht], court of appeal, and the supreme court—must be converted into an organization ofthree levels—district court [Kreisgericht], Gau court, and supreme court—to conform to the new political organization of the Reich and to party jurisdiction.

All proceedings at law must be based upon the district court [Kreisgericht] which will no longer be provided with three judges as at present the district court [Landgericht] but only with one. Moreover,trial by one judge only will be the ideal and the rule of the administration of justice. The district judge is the principal link between the judges and the people. Establishing the facts at the source is decisive for all subsequent findings, as this established the closest contact with real life in respect of time and locality. The “exodus from the country” to “higher” positions, observed with much concern in the case of judges and which is in concurrence with the exodus from the country by the people in general and also of interior administrative organs, must be counteracted with all means with the aid of political pressure on thepersonnel concerned. The district judge must be—from a human and from a professional point of view—the most efficient judge of all. Legislation has placed all means at his disposal for a quick and correct judicial decision. It must behewho is directing all proceedings at law, and not the parties as has been customary heretofore. A state of affairs is untenable where the parties at times “just tested their ground” in the court of the first level, and where they were reluctant to admit the truth and the evidence, because “they will go to the Reich Supreme Court in any case.” The better the guaranties created in the first level with regard to personnel and proceedings, the less will be the justified demand for themeans for legal redress. Of course, the possibility for a re-examination of each and every judgment (with the exception of petty cases) must remain. The authority that goes with the word “uncontestable” may be only accorded to the decisions of the Fuehrer. But the primary conditions for the application of legal remedies will be rendered more difficult. The capitalist conception of the value of matter in litigation shall no longer be the standard as at present, but the standard must be the importance and the effect a judgment will have on the public in general and on the further evolution of justice. The Gau court at the residence of the Gauleiter and Oberpraesident will be designated as court of appeal and will be provided with three judges in accordance with theFuehrer principle; the Reich Supreme Court with three or five judges sits as court of revision also in accordance with the Fuehrer principle, therefore not subject to the outcome of voting but to leadership. I am, in principle, against all centralization. In spite of the foregoing, the place for the Reich Supreme Court of Greater Germany is in the capital of the Reich, consequently in Berlin and not in Leipzig (a compromise of the second Reich). The Reich Supreme Court will not act as at present as a court of revision for all cases of a certain value of the matter in dispute. It is only competent with regard to maintaining a uniform administration of justice and to guarantee stability of law.

Titles such as Amtsgerichtsrat, Landgerichtsrat, Oberlandesgerichtsrat, and Reichsgerichtsrat are out of place to describe the activities of judges of the future. A judge does not give “counsel” but passes judgment. Therefore, the only title that corresponds to the matter in question and with his activity is the title of “judge.”

4. The merger of the present day Amtsgerichte and the Landgerichte to establish a Kreisgericht [district court] with its seat probably at the residence of the Landrat [county councilor], or of the district party leader, means theabolition of many smaller courts not capable of sustaining themselves. Apart from this, the conception of the “Amtsrichter” as the father of a small communityhas died out long ago. In his place stepped the young and forever coming and going assistant [assessor] who has to prove himself or the Amtsgerichtsrat with his all too narrow outlook on life who has very often become embittered because he had not been promoted or did not have enough to do. The decisive factor is not his judicial wisdom but his authority as a human being. Consequently,the honorary (unpaid) justice of peace shalltry petty cases of every day occurrence in each community. He is not requested to have a legal training, in as much as it is his duty to reconcile the parties and to restore the peace between neighbors. The man who enjoys the most authority of all men in the community—in accordance with the prevailing characteristics of the place, he may be a trusted senior party member, a pensioned officer, or a farmer—will be given the chance to perform here a most beneficial activity. Besides, for judicial matters requiring the attention of a trained lawyer, the judge of the district court [Kreisrichter] in his capacity as a circuit judge will hold court in case of need on special court days in communities belonging to his district. In this way every German fellow citizen has access to a court in his place of domicile, moreover, the judge heretofore confined to a too limited sphere for his activities will automatically disappear.

5. The duties of a judge must have an exclusively judicial character. All duties not requiring for their discharge the special schooling, experience, and training of a judge must be transferred to thejudicial administrator, the higher, intermediate civil servant of the administration of justice. The satisfactory experience made by the general interior administration, and by financial and postal offices in regard to their well versed, old time magistrates and chief inspectors may well serve as an example.To relieve the higher officialsof some of their duties and to delegate them to lower grade civil servants prevents the former from becoming narrow-minded, short-sighted, and trivial and imbues the latter with thereadiness to assume responsibilities. The duties of a judicial administrator—in places not provided with an official domicile of a district judge—consists of preparing current work and applications intended for the district judge [Kreisrichter] but also for the justice of the peace.

VIII

Therefore, it will be possible to produce the type of National Socialist judge only by—

1. A radical change of training methods.

2. A radical reduction in the personnel.

3. Removing the judges from the civil service.

4. A radical change in the entire judicial organization.

This means a sweeping judicial reform top to bottom, talked about for decades, even for centuries, but which was not accomplished either by the second or by the intermediate Reich [Weimar Republic]. Administrative work and decisions on each and every point require a great deal of time. Consequently, these problems must be tackled as soon as possible from within the administration, not “although,” but “because” we are engaged in war; not because they will come into force and practice during the war, but because they must be held in readiness for after the war. Frontline soldiers returning from the war can be assured that the preparation made for the appointment of National Socialist judges will contribute its share of safeguarding for all time the ideals they have fought for. And the judiciary system, if not completely transformed and reorganized, will hardly attract to it the best of the returning soldiers primed with energy, wanting to quench their thirst for peaceful and constructive work. Well qualified and vigorous judges are indispensable for the enormous peacetime tasks in store for the great Germanic Reich.

Hamburg, 31 March 1942

[Signed]Rothenberger

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