National-Socialist legal writers also put up a most vigorous
fight against the formal observance by the State of the rule
of law in favour of a “substantive” rule of law.[67] In this
context, only some typical examples – taken from a number of
concurrent statements which defy any complete survey – can
be referred to here as evidence for this trend. Thus, for
instance, the following statement of Krauss, a disciple of
Carl Schmitt, ought to be mentioned:[68]
“A State based upon the rule of law does not denote
today – and neither did it in the nineteenth century –
any genuine reality, but only the absence of
substantial value in the organization of a State. The
words, a State observing no `rule of law’ (Rechtsstaat)
belong to a category of bad combinations of words, and
they have neither a substantial cognitive value, nor
any fighting value at all…A State based upon the rule
of law is a State of political weakness; it is part of
the system of the Weimar Constitution, of a period when
Germany had disarmed in every respect, morally as well
as intellectually…If we retain the idea of the rule
of law, we shall saddle the Fuehrer’s State with
relativism. For eventually `law’ will then be defined
as the restriction of leadership by its own volition,
the observation of statutory law, as legality of
substantive creativity…”
He continues that the idea of the liberal State based on the
rule of law is an outdated expression which does not
correspond to anything in the “reality of present times” and
that the word Rechtsstaat is used in its old-fashioned
meaning.
“When the State based on the rule of law is contrasted
with the actual necessity of the State – and thereby
with the State itself – and, based upon this point of
departure, the question whether concentration camps are
in conformity with the idea of the rule of law, is
answered in the negative.”[69]
In a postscript to Krauss’s work, Carl Schmitt70 states that
“the victory of the ideas `citizen’ and `Rechtsstaat’
coincides with the emancipation of the Jews” – a statement
intended to bring the idea of the rule of law into
disrepute.
Lange[71], too, considers the fact that the liberal idea of
the rule of law has been promoted to a considerable extent
by Jewish scholars as a grave defect. This author uses, for
instance, the following expression intended to bring into
disrepute a State based on the rule of law within its
liberal meaning (which is already to be discredited by its
designation as “statutory State”):
“Liberalism used the weapons of normative concepts and
pseudo-values, coined and directed by that universal
power, the press, which was controlled by a race
without a land (p.5).
“National-Socialism has replaced the liberalistic
worthless technique of life by clear values of life and
led to victory ideas of duty and community which were
pushed more and more into the background. Values like
God and faith, people, race and homeland, honour and
family rise high above the individual…(p.20).
“…the middle-class legalistic positivism which does
violence to any decision of the Fuehrer by applying
thereto the illusion of considerations peculiar to its
way of decision-making and by approving the right of
judicial review…(p.35).
“…it results from this very idea that its (the new
State’s) rights precisely are not limited by this
barrier and do not come to an end there. Therefore, the
concentration camp precisely constitutes, for the idea
of community, a form of safeguarding justice just as do
protective custody, arrest pending investigation, penal
custody…(p.30).
“The empty statutory State which in the last resort is
a State without justice equipped with the Stateless
statutes, has been overcome by the National-Socialist
State of justice. Thus the way from Liberalism to
National-Socialism is tantamount to the way from
statute to justice, from nation to people,from
imperialism to peace,from sword to spade” (p.40).
Roland Freisler is to be called, probably, the most
determined and the most aggressive adversary of the
principle nulla poena sine lege. Time and again, Freisler72
attacked this principle as being incompatible with
National_Socialist ideas of justice. The formulation of the
question of the heading of one of the relevant articles,
“Protection of the People or of the Offender?,” is already
typical of his views. Freisler was fully aware of the
relation between the idea of the State based on the rule of
law and the prohibition of retrospective application;
therefore, he renews time and again the attacks of the
liberal idea of the rule of law as such. A number of
statements constituting a typical example of these attacks
which were made in an article in the Deutsche Justiz (1937,
p.151 ff) ought to be quoted here:
Freisler begins his comments by attacks on the liberal idea
of the rule of law.
“…that this `State based upon the rule of law’ had
become incapable of answering the question of the
relationship between the individual and the State, the
basic question of the interaction between society and
its members, that life within the State had drifted
towards anarchy in the course of individualistic
atomization which had become more and more powerful.
“…Obviously this rule of law could not be the goal of
the political structure aimed at by National-Socialism”
as it (scilicet: NationalSocialism) does not permit
formal considerations to become the straight-jacket of
life…as it looks again on the relationship between a
member of the people and the people itself from a
natural and biological perspective and not from a
legalistic one, artificial and remote from life.
Therefore, it cannot look upon the separation of powers
as the essence of a wise organization of the State. On
the contrary…It cannot provide for the control of
leadership by its followers.
“Moreover, it cannot accept the consequences reached by
the middle-class liberal State, based upon the rule of
law, as for instance the guarantee of freedom for the
dishonest contained in the sentence nullum crimen sine
lege.”[73]
For the healthy approach of ordinary people precisely
requires punishment where the deed is morally
reprehensible.”[74]
The comments of the Minister of Justice Guertner follow
exactly the same trend:
“Now in this respect National-Socialist ideas of
justice and State voice their criticism. They firmly
demand that every behaviour which ought to be punished
shall also be met with due retribution, that nobody
shall succeed to escape through the mesh of the law and
that, rather, the perpetrator of any deed which ought
to be punished shall be awarded the punishment he
deserves, regardless of the imperfection of the law.
Therefore, the sentence nulla poena sine lege will be
countered by the sentence “nullum crimen sine poena.
National-Socialism establishes thereby a new sublime
goal to criminal law: the realization of genuine
justice.”[75]
Freisler is also the author of the following sentence:
“The protection afforded by criminal law from wrongful
deeds which ought to be punished, must not be left to
limp behind the ingenious inventiveness of the enemies
of the people; they rather have to know that by their
acts they expose themselves to criminal sanctions, even
if their wrongful deeds are clothed in forms which are
not yet covered by statutory provisions.”[76]
One would think that the legal approach to the principle
nulla poena sine lege advocated by National Socialism not
only in its writings, but also carried out by its adherents
in practice, had not only caused political and moral
condemnation in principle but had also given rise to that
conviction that as a matter of method, this road is
impassable. Therefore it is not only surprising, but
startling to find in the first decision in criminal matters
of the (German) Supreme Court for the British Zone, dated 4
May 1948, the following sentence:
“The fact that Law No. 10 of the Control Council to a
certain extent (this refers to crimes against humanity)
penalizes offences which at the time of their
commission had not yet been made punishable, does not
constitute an obstacle to its application…Such a
provision is not unjust, and therefore a German judge
does not need to feel a burden upon his conscience in
applying this provision. Punishment with retrospective
application is unjust if the offence at the time of the
commission not only had not violated a statutory
provision of criminal law, but if, in addition, it had
not violated the code of morality. This does not apply
in the case of crimes against humanity. In the opinion
of all men feeling themselves bound by the rules of
morality, a grave misdeed has been committed, and it
would have been the duty of a State respecting the rule
of law to make provision for its punishment. It is in
line with the principles of justice to provide for a
remedy of this defect in the execution of this duty by
making a provision for punishment with retrospective
effect. Moreover, this does not constitute a violation
of the principle of a certainty of the law, but the
restoration of its basis and prerequisites. The
protection of wrongdoing is not the purpose of the
certainty of the law.”[77]
In its decision of 18 October, the Supreme Court added to
these principles the following sentence:
“The offence penalized by Law No.10 of the Control
Council as a crime against humanity had already at the
time of its commission been an offence which ought to
be punished in the opinion of all men feeling
themselves bound to the rules of morality.”[78]
Therefore, the power to punish is derived again from the
conviction that the perpetrator ought to be punished. The
coincidence between the terminology and the methods used by
the Supreme Court and, for instance, by Guertner makes an
ominous impression. It is hard to believe that Israel, by
following the same line of thought, will enter into such a
dubious area, as the German Supreme Court had done.
E: Nulla poena sine lege according to Israeli law
It has been shown that there are certain doubts whether
Israel is bound by international law to respect the
prohibition of retrospective application.
On the other hand,it must be stated that the municipal law
of Israel provides for the prohibition of retrospective
application and that an Israeli court is not empowered to
convict the Accused Eichmann under the retrospective Nazi
and Nazi Collaborators (Punishment) Law.
It is true that the prohibition of retrospective application
is not entrenched in any Israeli constitutional law.
However, it has to be emphasized that art. 13 sec. 7 of the
Draft Constitution expressly provides for the prohibition of
retrospective application. Certainly, the reason why the
Constitution has not yet been adopted is not the fact that
in the question of criminal statutes with retrospective
effect differences of opinion have arisen which cannot be
settled. The prohibition as framed by the Draft Constitution
can therefore be considered as the expression of a principle
being already at present part and parcel of Israeli law.
This proposition is confirmed by the fact that Israeli
criminal law has developed following the model of English
criminal law – a law, which at least inasmuch as critical
statutory law is concerned, recognizes the prohibition of
retrospective application.
Conclusion of the Part 2.
The punishment of the Accused Eichmann under the provisions
of the Nazis and Nazi Collaborators (Punishment) Law would
be contrary to the prohibition of criminal statutes with
retrospective effect and is therefore inadmissible.
Last-Modified: 1999/06/09
