ABSTRACT
In the opening statement for all the defendants, the defence counsel Egon Kubuschok’s main point was that no new legal system was created during National Socialism. German law was codified law, which in itself demanded observance of legal standards. According to legal positivism, which occupied a very important position in German legal thinking, only ‘the written law (statutory law) and not general ideas on morals and rights constituted the directive for administration of law and justice’.3 Moreover, Ministry of Justice and judiciary sought to defend the concept of constitutional state and independence of the judiciary from interventions by Himmler’s powerful police forces. All the defendants pleaded not guilty. The highest official on trial, Franz
Schlegelberger, Acting Reich Minister of Justice, pleaded, ‘I was never fooled or influenced by Hitler’s demoniacal qualities, and I saved my own conscience,’ and ‘I was out to fight for justice and against arbitrariness.’4 He was ‘a man whose life was devoted to the law’, but who understood ‘how certain sacrifices had to be made to this storm of power in order to prevent it from
triumphing completely’.5 He remained at his post to prevent something worse, but when he realized on 20 August 1942 that he had to build up a National Socialist administration of justice, he resigned. The same excuses were repeated again and again: ‘I was a German judge.
I followed the laws of my country and my knowledge and my conscience in passing judgment’ (Nebelung).6 ‘I served my country … in faithfulness, with a pure heart, and without malice. … Nobody in our position at that time could be of the opinion that the State which we served could be accused of being altogether illegal … I applied the laws of my country in the manner in which they were intended, to the best of my conscience and belief ’ (Rothaug).7 ‘I always acted in the belief and in the conviction that I was doing right, by obeying the law to which I was subjected and applying it in the manner in which my conscience told me to’ (Oeschey).8 ‘[T]he obedience to the law and the norm created by the State has been the only task of the jurist. … What legal and factual opportunities were open to me I used in favour of justice … To revoke laws and norms which have existed for years was not in my competence’ (Klemm).9 ‘These proceedings … prove that I always only served law and justice’ (Altstoetter).10 ‘I decided with all my energy to influence the development of National Socialism in the sphere of justice’ (Rothenberger).11 ‘Only a judge who is a saint is free of errors’ (Cuhorst).12
