Faculty of Law, University of Oslo, Oslo, Norway
The Need for Legitimacy
In his book on political justice, Otto Kirchheimer claims that judicial proceedings serve to authenticate and thus to limit political action. By this, those in power stand to gain as much as their subjects. Authentication removes the fear of protests and reprisals from victims and encourages a friendly and understanding attitude towards the security needs of the power holders.1
The legal system is not the main arena for battles between the regime and its opponents. The courts may therefore often serve to provide sanction to solutions and decisions reached elsewhere. The regime may resort to the service of the courts out of necessity, choice, or convenience.2 Courts are mostly not the most efficient means for dealing with a political or social issue. But their connection to the law and legality gives their proceedings and decisions a special quality that is sought by democratic and authoritarian rulers alike.
Courts, law, and legitimacy are important even to oppressive regimes. Courts are needed for many different purposes. They are needed to establish social control and sideline political opponents, to provide legitimacy, to strengthen and control administrative compliance, to attract foreign investment, and to implement controversial policies.3 Legitimacy is important for the acceptance of the regime and its measures among the social elites and for the possibility to economise on the use of direct force. Legitimacy can also be important to the foreign relations of a regime. For instance, the postwar authoritarian regimes in South Korea and Taiwan kept an appearance of formal constitutional legality for the sake of their security relations with the United States, but the scope of the independent courts internally was carefully circumscribed.4 The rule of law and independent courts are important also to maintain the legal stability needed by the economic order. Even in Nazi Germany, the economic law in the narrower sense was in the most untouched by the “national socialist revolution”.5
All authoritarian regimes do not equally depend on courts pronouncing on their legality. Stalin’s Soviet, Mao’s China, and Pol Pot’s Cambodia did not engage courts in any important degree in their repression and the legitimation of their repression. The atrocities in former Yugoslavia and in Rwanda did not request legality.
Many authoritarian regimes, on the other hand, do seek the support of the courts, and with good reason. The Truth and Reconciliation Commission of South Africa claimed that “part of the reason for the longevity of apartheid was the superficial adherence to ‘rule by law’ by the National Party (NP), whose leaders craved the aura of legitimacy that ‘the law’ bestowed on their harsh injustice”.6 Research suggests that the Commission was correct in its observation. A study of confidence in the legal system of South Africa shows that more than half of the population had a great deal or quite a lot of confidence in the legal system during apartheid and that the confidence of the black portion of the population was on level with the confidence of the white portion.7 It seems that support of the courts and the law is of particular importance to countries belonging to the western legal tradition.
Even a totalitarian state like Nazi Germany showed great deference to legality and its conception by the public. The Nazi takeover of power was carefully designed and employed as a legal strategy and was perceived in its time as legal in a substantive sense.8 The same was true seen from the outside. Although many foreign observers were critical, the legality of the legal development under the Nazis was not questioned as such by contemporary commentators.9 Nazi rule had a preference of converting Germans to its cause and using force only against fringes that could be identified as criminal.10 This preference gave the law and the legal institutions an important role in securing legitimacy for the regime.
Courts hold the final word of that which is to be regarded as legal and that which is regarded as illegal in a given society. The relationships between the determinations of the courts and the extent to which people in society regard the regime as legitimate are indirect and complex, as are the relationships between the perceptions of legitimacy and the ability of the regime to pursue its policies. These relationships vary between different societies and probably depend on a whole range of conditions such as tradition, culture, and economic and social complexity. This is one of the reasons why the concept of legitimacy is so difficult to social theory.
In countries of the western legal tradition, notions of the rule of law seem to play an important part in establishing legitimacy for the rulers. Therefore, in these countries, courts by their control over legality hold an important condition for the actual and normative legitimacy of the other organs of state. How they exercise this control is of crucial importance to the destiny of the rule of law when it is under attack and may also be of importance even to authoritarian rulers. There are many examples of how the Nazi regime needed the judges for the appearance of legality and how this affected the functioning of the judiciary and the courts. Goebbels originally intended for the trials against the conspirators behind the attempt on Hitler’s life on 20 July 1944 to be utilised for propaganda purposes. He therefore arranged to have the proceedings filmed. However, after seeing how openly shockingly biased the first trial was conducted by the president of the People’s Court, Roland Freisler, he dropped the plan of having the film shown to the public with the words “Freisler’s clamour is not suited for the public. It would seem repulsive to the uninitiated”.11
Another example of how the concern of reactions from the public influenced the conduction of justice can be found in a ruling of the Supreme Court in 1938, where it overruled a decision by a lower court to incarcerate a witness who refused to give evidence.12 Such a decision “affects the basics of judicial procedure”, and it could compromise the confidence of the people in this procedure if one employed “such means to pursue the truth as the Regional Court has employed in this case”. Similar arguments were employed by the Supreme Court of Argentina in an opinion where it rejected the arguments of the military and stated that the administration could enhance its public esteem by “proving its respect for the judicial power”.13
Deference to legality seems also to underlie the policy that the Nazi regime took in implementing the euthanasia programme of the mentally disabled and incurable sick. At Berlin, 1 September 1939, Hitler signed the secret order charging Reichsleiter Bouhler and Dr. Brandt, MD, “with the responsibility of enlarging the authority of certain physicians to be designated by name in such a manner that persons who, according to human judgment, are incurable can, upon a most careful diagnosis of their condition of sickness, be accorded a mercy death”. The order was not based on any previously existing German law, and the only authority for the execution of euthanasia was the secret order issued by Hitler. Following this order, over 70,000 people were put to death. Officials in the ministry of justice protested that the Hitler letter was not a law and that official legislation was necessary to legalise euthanasia. The Reich Minister of Justice even wrote a letter to the chancellery of Hitler stating that as the Führer had refused to issue a law, it was necessary to discontinue immediately the secret extermination of insane persons.
The desire to keep the killings out of public view was probably the reason why the necessary legislation was not enacted. The killings were not discontinued at this point, however, and prevailed until the public protests reached a disquieting level. At that point, the official euthanasia programme was discontinued, although some killings, especially of children, were kept on as “wild euthanasia” in certain clinics.
The same pattern can be seen in the lengthy discussions within Nazi Germany over the definition of “Jew” according to the Nuremberg laws and whether to include persons of mixed ancestry and Jews married to Germans in the deportations and extermination. As adopted in 1935, the Jew laws included persons with at least three Jewish grandparents. Circles within the Party and the SS pressured expanding the scope so as to include “every drop of Jewish blood” in the purging of Jews from the German community. The SS also wanted to deport persons not formally recognised as Jews and also deport the Jews married to Germans. These efforts were for the most part unsuccessful, and persons of mixed ancestry and Jews married to Germans were, to a large extent, saved from the Holocaust. According to officials within the Ministry of the Interior and the Ministry of Justice, this was largely due to their moderating influence and the resistance of bureaucrats in opposition to the measures against the Jews.14 A more probable explanation is that the leading Nazis were concerned about public reaction to laws and measures breaking up the institution of marriage and breaking into large numbers of German families.
Goebbels realized he could not murder all the people he wanted to murder – the Jewish relatives, spouses, sympathizers. At some point the Germans would have begun to identify with one another rather than with a government that kept demanding ever more human victims.15
National Socialist jurisprudence was at great pains not to be blamed for discarding the concept of the “Rechtsstaat” and did so partly by applying a new construction to the old term.16 This policy of striving for legitimacy by reference to legality, albeit grounded in new concepts such as “the need of the German people” and “the will of the Führer”, required certain self-restraints in order to maintain the belief in legality and the support of the German people. The fact that this restraint was shown by the Nazi leaders when public protests became evident shows the importance the regime attached to the appearance of legality.
When authoritarian groups take control over the state and destroy its legislative and executive organs, the courts are often allowed to continue their functions. Where parliaments are disempowered and dissolved and civilian governments replaced by the military, courts are often allowed to continue their functions with a continuance both of the institutions and the personnel. This was the case even in the German occupation of the Western European nations during World War II, and it has also been the case in most coups d’état in postcolonial states.17 The situation of the judges is, in this respect, similar to the situation of the civil servants, who also most often continue their functions after a regime change. There is, however, one major difference between judges and civil servants. Whereas civil servants are so many and specialised that they are required in order to maintain the state functions of governance, judges could more easily be replaced or dispensed with all together. The fact that judges are allowed to continue therefore indicates something about the need of the regime to uphold pretence of judicial independence.
Judicial independence involves a spectre of issues, including institutional, ideological, and personal aspects, and requires that “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.18 In this sense, many authoritarian regimes violate the independence of the judiciary in that they try to coerce or pressure the judiciary to accommodate the needs of the regime. On the other hand, the pressure often seems to stop short of ordering the judge how to decide the individual case or applying sanctions against a judge who decides contrary to the interests of the regime. In cases where sanctions are applied, they are often limited to reposting or removal of the judge. Criminal sanctions and reprisals seem rare. The rulers may try to exert influence over the judiciary through different means: by appointment of judges loyal to the regime, by dismissal of judges who do not perform in accordance with the preferences of the regime, and by interference in judicial proceedings.19
The Nazis stressed the importance that the independence of the judiciary be formally upheld. There was a lot of ideological pressure on the judiciary through the mass media, scholarly journals, and letters to the judges from the Ministry of Justice. Many judgments had to be confirmed by the executive in order to become final. If the executive disagreed with the judgment, a retrial was ordered. On the other hand, the regime showed restraint in exerting influence through appointment and dismissal of judges and also in the interference in the individual legal process. The independence of judges was seen as one of the central features distinguishing Nazi Germany from “Bolshevism”. Hans Frank, the head of the Nazi Lawyers’ Association, was of the opinion that the very existence of their “bourgeois culture” depended upon the independence of the judges.20 Even as late as 1944, the German High Command issued a regulation stating that “The military judges are not under any orders when it comes to deciding the facts of the matter and their exercise of judicial functions. They are to decide according to their conviction based on all that has been presented during the case, according to soldierly values and an interpretation of the law based on the national socialist view of the world (Weltanschauung)”.21
The control over the courts that Hitler and his cabinet exercised did not go through party lines. After some initial struggles of power between the party and the civil servants in the first years of the Nazi takeover, Hitler’s control over the judiciary was mainly exercised by the delegation of his power to the Reich Minister of Justice. This ensured a measure of judicial independence from political pressure and influence, as the Ministry, until a policy change in 1942 towards the judiciary, only intervened in a few politically sensitive cases.22 The party was given some influence on the recruitment of judges, but the main grounds for recruitment were on professional merit. Up until the 1940s, there was no pronounced control over the rulings of the judiciary, and the majority of the judges do not seem to have been under the impression that they could risk political scrutiny of their decisions at any time.23
The regime had clear interests in maintaining formal judicial independence. Herman Jahrreiss, professor in public law and public international law and defender at trial at Nuremberg against the major war criminals, expressed it this way during this trial:
… The only thing that was not quite clear was Hitler’s relationship to the judiciary. For, even in Hitler Germany, it was not possible to exterminate the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the bulk of the people in their everyday life. Up to the top group of Party officials this was shown by some of the speeches by the Reich Leader of jurists, the Defendant Dr. Frank, as quoted here – there showed resistance, which, it is true, was not very effective, when justice in civil and ordinary criminal cases was equally to be subjected to the sic volo sic jubeo of one man. But apart from the judiciary, which in the end also was beginning to succumb, absolute monocracy was complete.24
The pressures on the judiciary increased during the war. On 26 April 1942, Hitler addressed the Reichstag in part as follows:
I do expect one thing: That the nation gives me the right to intervene immediately and to take action myself wherever a person has failed to render unqualified obedience…
I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person, or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty…
From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.25
In the opinion of the US Military Tribunal, this speech changed the position of the German judiciary and formed the basis for the situation described by the Tribunal where one could no longer speak of an independent judiciary in any meaningful sense. The US Military Tribunal stated that at this time “the function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner”.26 The ministry at the time saw it differently and considered that they failed to control the judges even in so sensitive areas as the laws governing the military necessity of war.27
In fact, it may be an open question as to how much of a real change Hitler’s speech represented. Hitler took measures to ensure that there was no direct influence on judges by party officials but that conflicts were sorted out at the ministerial level.28 One of these measures was the change of personnel at the top of the Ministry of Justice and the introduction of the “judge letters” where individual decisions were commented on for the benefit of educating the judges in National Socialist legal flair.
Even after the change in 1942, and Hitler’s speech in the Reichstag, the situation was not totally under the control of the regime. The judges themselves read Hitler’s criticism with disbelief and blamed his—what they saw as ill-founded—allegations on his advisors. They did not believe that Hitler would allow direct interventions in the affairs of the courts, and they were confident that he would protect the independence of the judiciary.29 The judges were assured, and they believed, that Hitler would not allow interference with individual judges and that he would protect judicial independence.30 All in all, judicial practice shows that the judges functioned to a certain extent independently, even after 1942 when the scope of their freedom had been decreased.
Judicial independence is evidenced also by the fact that the Nazis, to a very limited extent, disciplined or sanctioned judges for non-conforming rulings. A contemporary observer, Karl Loewenstein, wrote in his report on the reconstruction of German law after Nazism:
But not a single case is reported in which a judge who resigned was sent to a concentration camp, or even lost his pension. If he wished, he could leave the service and “sit the regime out” on his pension. Though such cases occurred not too frequently, they were known and widely commented on by the judiciary. Moreover – and this too was fully known – there were some judges, particularly among the older generation, who, neither resigning nor yielding, resisted pressure to the end. Nor is it correct to assume that non-party members among the judiciary were invariably denied promotion. No doubt one reason for this is that very few judges mounted any opposition against the regime. But some did quite openly without meeting with more serious sanctions than transfer to a different jurisdiction, lack of promotion or removal from office with a pension.31
Judges who opposed the Nazi policies were given mild reprimands and in the more substantive cases where pensioned off.32 This happened to Lothar Kreyssig, for his protests against the euthanasia programme, and to Hubert Schorn. Judges who refused to enter the Nazi Party experienced that they were passed over for promotion and that it took longer for them to advance in their careers.33 Nevertheless, it cannot be denied that many judges may have maintained their loyalty to the regime and contributed by meeting out draconic punishments out fear of the consequences of seeming disobedience.34
Judicial independence was respected to a degree also in countries under German influence during the war. In Vichy France, lawyers could, without significant risk, protest against oppressive Vichy laws.35 Even in the occupied countries, the Germans were, in general, moderate in their dealings with opposition from the national judiciary. In Norway, the judges of the Supreme Court did not encounter any sanctions for their protest when they resigned over a controversy with the German Reichskommissar.36 Also, the lawyers appearing before the German war tribunals and SS courts were surprised over the extent to which they were allowed to speak and criticise freely the occupation authorities in court without being reprimanded.37 In the Netherlands, two judges were dismissed when they sentenced a criminal with a lenient sentence in order to save him from having to serve a sentence in a German detention camp, which had been exposed for its ill-treatment of prisoners.38
In Belgium, the confrontations were more severe and the German measures harder. The Belgian judges were told when they discontinued their work in protest against a demand to apply the legal measures of the German occupier that such an act would be regarded as an illegal strike subject to criminal proceedings against them, and they were subject to arrest and hostage taking during the occupation.
The judges of Belgium were in constant opposition to the German occupiers throughout the occupation. As the occupation progressed, the German occupiers resorted to intimidation to persuade the judges not to rule unfavourably. In several cases, judges were arrested and punished for “anti-German behaviour”.39 Judges who ruled contrary to the expressed interests of the occupier were placed on lists for hostage taking. The Court of Cassation protested against measures against judges who had acted within their official capacity and in compliance with Belgian law and who considered such measures an attack on the independence and dignity of the courts. In cases where judges were removed from their office for ex officio acts, the Court of Cassation intervened successfully, but it had less success when judges were removed for vicarious reasons.40
One dramatic example involved a dispute over an administrative regulation in a reorganisation of the Belgian administrative structure. When the legality of this was contested, the military administration ordered a stay in the proceedings before the Brussels Court of Appeal and the Court of Cassation. The Court of Cassation complied, but the Brussels Court considered the letter an attack on its judicial independence and rendered judgment where the administrative regulation was declared ultra vires. The military administration reacted by arresting the three judges who had participated in the decision and taking several other judges hostage. The administration, however, denied that the hostage taking had anything to do with the judgment of the Brussels Court.