Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume IIIVarious
History
Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III
Various
Nuremberg Trial of Major German War Criminals, Nuremberg, Germany, 1945-1946; War crime trials -- Germany -- Nuremberg
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
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