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
WITNESS JAHRREISS: Yes, thank you. I have spoken so far
only about orders by Hitler, but in German constitutional law dating
back to the days of the monarchy and the Weimar republic we have not
only norms fixed by the Reichstag or the head of the State, but also
many norms laid down by the government, in the narrower sense by the
minister. The ordinance [Verordnung], of which I spoke in the beginning
differentiating it from the statutes passed by legislators, is
normally the ordinance of a minister, and under German constitutional
law the following is valid. That was not changed in the Hitler era.
Administrative ordinances, that is to say, norms which are not legal
principles in the narrower meaning, are issued by every minister within
the framework of his own department, without any special basis. Other
ordinances, that is to say, legal ordinances, can only be issued--he
can issue them, but he can only issue them if he has been authorized to
do so by the constitution or by a legislative act. That was, in fact,
what I described at the beginning. And so, in the Weimar era, we had
many ministerial ordinances if the law empowered the minister to issue
them. If I may add this, the result of that differentiation was this,
if the courts had to apply an ordinance by a minister, or to be more
precise, when it was doubtful whether it was to be applied, then the
court had to examine whether the minister was empowered, was authorized
to issue it. If the court denied that question, the ordinance did not
exist. May I ask whether this was in answer to your question, Your
Honor?
PRESIDING JUDGE BRAND: I was interested especially in the
source of authority, of decrees signed by various ministers after
Hitler came into power. Would it be accurate to say that such decrees
received their validity because of a delegation of power to the
minister directly from Hitler?
WITNESS JAHRREISS: Yes, for legal ordinances. Hitler was the
legislator. He could issue the ordinances himself but he could also
delegate authority.
DR. SCHILF: Professor, I should like to follow up your words.
In the Hitler state, so to speak, all people were on duty. There
were no longer any citizens. You said the citizen was dead. May I ask
you, in our legal language we call an order by a phrase which is very
concise and which might explain it better to the Tribunal, that the law
also in the former meaning was a law that was the same as an order to
a servant. May I ask you to tell me whether that general instruction
to an official, a civil servant, to a servant was the same as the law
which had been solemnly promulgated in the Reichsgesetzblatt?
WITNESS JAHRREISS: If I have understood your question
properly, you want to know whether the obligation was the same?
Q. Yes.
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