The Opposition

Legal professions have often been active in the building of liberal institutions. In many instances of tyrannical and oppressive rule, judges, as well as lawyers, are brave protectors of the rights and freedoms of individuals. In the examples I have chosen for this book, however, the judiciary have failed and become accomplice to the oppression. Even though the judiciary in these cases has contributed to the atrocities of oppressive regimes, this is not the whole picture. “Despite the deep fall of our supreme servants of the law, the flame of law never quite extinguished in our judiciary through these most difficult years”, wrote professor and former minister of justice in the Weimar Republic for the Social Democrat Party Gustav Radbruch after the collapse of the Nazi regime.¹ In a more self-satisfied vein, former justice of the Reichsgericht Emil Niethammer wrote:

In spite of this, all the decisions of the Supreme Court were targeted on humanity, truth and justice as the main goals. Humanity, truth and justice are enduring supreme goals. They do not depend on the human conditions; they are given humanity by God. They endure even when the attitudes and outlooks on earthly matters change, in particular on matters of state. Because of this, the attempt of the legislator (to breach the ties to the previous case law) never fully succeeded. Since its inner bonds sustained, its outer freedom was crust and smoke. The true value of “the case law of the past” nevertheless persisted.²

It is difficult to believe in the sincerity of these statements from a man who was an active justice at the Court when it developed its racial jurisprudence against Jews far beyond the statutory requirements of the Nazi regime. And it is impossible to agree with the statement that “all the decisions of the Supreme Court were targeted on humanity, truth and justice”. On the other hand, the French judges continued to believe that they were upholding the rights entailed in the constitution during the Vichy regime, despite the enactment and enforcement of racial legislation against the Jews.³ In the same way, it should be granted that German judges could continue to believe that they were preserving the “flame of the law” in the storm of extinguishing evil forces and that some of them were actually doing so. Such statements as the one of Niethammer should therefore be taken as evidence of the state of mind of judges at the time and not as evidence of the state of the law. Both Radbruch’s and Niethammer’s statements are evidence that the ideology of law as something autonomous dedicated to protecting more general values such as justice, equality, and the rule of law was in existence also through the Nazi period, at least as an ideology to praise and, to some, also as a troubling conflict of conscience. To some, it was present as even more than this.

After the fall of apartheid, President of the Constitutional Court of South Africa Arthur Chaskalson wrote:

For despite all the paradoxes they have somehow held to the infrastructure and have kept alive the principles of freedom and justice which permeate the common law. True, at times no more than lip service has been paid to these principles, and there have been landmark cases where opportunities to give substance to and uphold fundamental rights have been allowed to pass without even an expression of discomfort, let alone a vindication of the right. Yet the notion that freedom and fairness are inherent qualities of law lives on, and if not reflected in all of the decisions, is nonetheless acknowledged and reinforced in numerous judgments of the courts. This is an important legacy and one which deserves neither to be diminished nor squandered.⁴

The Truth and Reconciliation Committee also emphasised the existence of an opposition against the regime among the judges:

Yet, for all that this was the overwhelming pattern of the law and lawyers’ conduct under apartheid, there were always a few lawyers (including judges, teachers and students) who were prepared to break with the norm. These lawyers used every opportunity to speak out publicly and within the profession against the adoption and execution of rules of law that sanctioned arbitrary official conduct and injustice. They explored the limits of their forensic skills in defending those on trial for offences in terms of such legislation, or in arguing for the invalidity of vague or unreasonable administrative action. They worked ceaselessly to prepare the cases of those targeted by the state, often in trying conditions and for little material reward. They advised and educated those in the community most vulnerable to official excesses, such as the rural poor and workers, through advice offices and religious bodies. They challenged their students to confront the relationship between law and justice and to translate their ideals into practice. They forswore the comforts of commercial practice for the sake of the upliftment of those excluded from all forms of power. They exercised their judicial discretion in favour of justice and liberty wherever proper and possible.⁵

Marc Osiel points out that it is often possible for judges to engage in genuine dialogue with the rulers in oppressive states. Judicial arguments are listened to and given general consideration, even to the extent that involves a change in policy. Legal arguments do not prevail with great regularity, but they are not ignored. Judges are allowed to express criticism publicly from the bench and are often not sanctioned or forced to resign.⁶ Osiel holds this as traits of authoritarian regimes, as opposed to totalitarian regimes, but there was a certain scope of judicial independence, critique, and dialogue even in Nazi Germany.

Apart from open judicial dissent in judgments, there are not many known examples of judicial resistance to the authoritarian rule in countries like Germany and South Africa, and countries in Latin America. It might be that the explanation for this is that such instances were few and far between. But there is also a methodological difficulty in the study of resistance under totalitarianism. It is in the nature of such activity that it is performed in secrecy without leaving trails for the political police to follow. Often therefore there are few sources for a historical account, and sources that are available may be intentionally deceptive.⁷ At the same time, accounts given by those who took part in the happenings of their own resistance may be coloured and exaggerated by people wishing to exonerate themselves from blame after the fact.⁸ This means that actual acts of resistance may be overlooked and that reported acts may be false or at least misleading. We shall start here with such resistance that at the time was openly stated in the official rulings of the courts.

Courts do not always enforce oppressive legislation without resistance. There are examples of situations where courts question the legality of oppressive measures or where they seek to limit them through restrictive interpretation or by applying them in light of general rule of law principles. A clear-cut example where the legality issue is tackled head on by a court is the approach of the Appellate Division of South Africa to the voters’ registration law. In 1951, the South African Parliament passed the Separate Representation of Voters Act, “to make provision for the separate representation in Parliament and in the provincial council of the province of the Cape of Good Hope of Europeans and non-Europeans in that province”.⁹ The consequence of the Act was to remove the right of coloured voters to vote for ordinary constituency members of the House of Assembly and instead allow them to elect four members of the House at separate elections. The Act was based on the ideology that non-European voters were inferior and that their participation in the general elections was a threat to white supremacy.

The validity of the Act was challenged on the basis of the South Africa Act of 1909, whereby the British Parliament established the South African Union. The South African Act provided that changes in the right to vote had to be made by the chambers of the South African Parliament acting in joint session and by a two-thirds majority. This procedure had not been followed by the South African Parliament when enacting the Separate Representation of Voters Act. In its landmark case of Harris v. Minister of the Interior, the Appellate Division declared the Act invalid, null, and void.¹⁰ The annulment of the Act was particularly noteworthy as the Court reversed a previous decision limiting its right to review Acts of Parliament.¹¹

The reply from Parliament was to set up a “High Court of Parliament” comprising the two Houses of Parliament to be the final instance in cases of the validity of statutes. This “court” deliberated an appeal of the decision of the Appellate Body in the Harris case and reversed it. The statute setting up the High Court of Parliament was brought before the Appellate Division, which invalidated it too.¹² The government’s response to this decision was to undertake a large-scale change in the composition and status of the Appellate Division, nominating five new judges to the Appellate Division under a power it had through the Criminal Procedures Act. Following this, Parliament in 1955 passed the Appellate Division Quorum Act, which stated that “on the hearing of an appeal, whether criminal or civil, in which the validity of any Act of Parliament (which includes any instrument which purports to be and has been assented to by the Governor-General as such an Act) is in question, eleven judges of the Appellate Division shall form a quorum”.

The government did not have the two-thirds majority in the two Houses of Parliament combined but used its majority to recompose and expand the Senate, and by this it managed to obtain the necessary majority. The two Houses acting together then passed amendments to the South Africa Act and established the basis for separate registration of the voters. It also passed an amendment stating that “No court of law shall be competent to enquire into or to pronounce upon the validity of any law passed by Parliament other than a law which alters or repeals or purports to alter or repeal the provisions of section 137 or 152 of the South Africa Act, 1909”. When this Act was challenged, it was upheld by the Appellate Division by a majority of 11-1.¹³ The Appellate Division held that the re-established Senate was legal despite its “artificial majority”.

The qualification that the courts still could review changes in the South Africa Act itself was no practical restriction on the government since it had established a right to reconstitute the Senate. In that way, it could always secure the necessary two-thirds majority as long as it had the simple majority of the House of Representatives.¹⁴

There is a parallel in the approaches of the German courts and the South African courts in that the power base of the new regime was regarded as legal once the formal requirements of the constitution were satisfied. The courts did not enter into an analysis of the substance or the way that the regime had come about satisfying the formal requirements. In the German case, the passing of the enabling law was not challenged on the ground that the Nazis achieved the necessary majority by suppressing political opponents, both before the elections and after they had been elected, to prevent them from attending the session of the Reichstag. In South Africa, the reconstitution of the Senate was left unchallenged because the South Africa Act did not contain any specific provision limiting the right of Parliament to legislate on it.

Courts under occupation do not show a consistent picture of subservience or opposition to the demands of the occupier. In many of the countries occupied by Germany during the Second World War, the national courts loyally administered laws passed to accommodate the interests of the occupying authorities. The Vichy regime of France is notorious for its enactment of anti-Semitic laws and decrees, and these were all loyally enforced by the judiciary.¹⁵ In Denmark, the courts enforced the oppressive legislation passed in the interests of the German occupier.¹⁶

There are also exceptions to this image of subservience and collaboration. The Norwegian Supreme Court justices collectively resigned their posts in December 1940 over a controversy with the German Reichskommissar Terboven and the collaborating Quisling regime over the power of the occupiers to enact reforms in the judicial system.¹⁷ Following the breakdown of the cooperation between the German and Norwegian authorities, the Germans in September 1940 appointed collaborating men as heads of the Norwegian ministries. At the same time, a whole set of laws and regulations was issued aimed at transforming Norwegian society into a National Socialist state. This legislative activity continued, and in November 1940 a regulation was issued that enabled the Ministry of Justice to appoint and dismiss juries and lay members of the courts in criminal and civil cases.

The Supreme Court wrote a letter to the ministry protesting this measure and argued that it was contrary to the general principles of justice of the Norwegian constitution and that it exceeded the powers of occupying forces under public international law. The judges got two reactions to this letter. The first was a regulation lowering the retirement age for public officials from 70 to 65, combined with a right for the responsible minister to prolong the tenure indefinitely. The second was a letter from the Reichskommissar stating that Norwegian courts did not have the power to review the legality of laws and regulations enacted by or on behalf of the occupation authorities.

With the new retirement arrangement, the conditions under which the justices should function became unacceptable to the judges of the Supreme Court. The “unreliables” would be dismissed at 65 and replaced with persons loyal to the regime. The letter from the Reichskommissar Terboven made clear that the Germans would not accept judicial review of the legality of occupation measures under public international law. Terboven claimed to be the supreme source of law in Norway. On December 9, all of the judges signed a letter where they asked the minster to revoke the retirement regulation. Three days later, they sent a new letter to the minister where they all resigned, because “we cannot adhere to the view expressed by the Reichskommissar on judicial review without acting in contradiction with our duties as members of the Norwegian Supreme Court”. The minister replied by dismissing the judges who were 65 years or older and by summoning the remaining to individual conferences in the ministry. When these conferences failed to provide submission by any of the judges, the ministry was forced to accept the resignation of the judges as a fait accompli.

The judges of occupied Belgium also offered resistance to the German occupiers. In October 1940, the German occupying authorities issued a prohibition for people of Jewish ancestry to exercise public office. The Court of Cassation wrote a letter to General Falkenhorst protesting and declaring the measure contrary to Belgian constitutional law and legislation.¹⁸ The Belgian courts more or less openly refused to apply regulations enacted by the military administration. They also refused to recognise the delegation of power to the Belgian secretaries general who were heads of the Belgian administration but recognised their measures when they were within the scope of Belgian law.

Following a case in the Court of Cassation where the Court asserted its right to review the measures of the Belgian Secretaries General, the military administration on 14 May 1942 enacted a regulation prohibiting judicial review. In reply to this, the Court issued a statement where it held that the result of this regulation was that Belgian courts could not try cases involving the application of sanctions based on measures enacted by a secretary general. The German authorities prohibited the publication of this statement and considered it a call for a strike. Nevertheless, the attitude of the Court of Cassation became known among the judiciary who adjourned all cases involving decrees of the secretaries general.

The occupant’s response to this was the discontinuing of payment of salaries to the judges, together with threats to arrest and execute ten judges and send the rest of the protesting judges to the east. An enormous pressure built up against the Court. The secretaries general were dependent on the courts for a legal basis in Belgian law for their administration—the alternative would have been a transfer of the administration to German hands. Finally, in July 1942, the Court gave in and accepted a compromise solution.¹⁹

A main difference between the approaches of the Norwegian and Belgian courts was that the Norwegian Supreme Court was willing to apply the regulations of the occupation authority provided that they were within its competence under public international law. The Belgian courts refused to apply the occupying authority’s regulations or the regulations by the Belgian authorities based on a delegation from the Germans. But they were willing to apply measures by the Belgian authorities provided that they had a basis in Belgian law as interpreted under the emergency conditions of the occupation.

In both cases, the national courts reserved the right to review, and in both cases this right was denied by the occupying authority. The Norwegian judges found it unacceptable to continue under these circumstances and resigned. Staying in office would have involved a transfer of their loyalty from the Norwegian constitution to the occupation regime. The Belgian judges, on the other hand, stayed in office. They were prevented under Belgian law enacted before the German occupation to abandon their post. However, they attempted to refuse to try cases where regulations by the authorities were grounds for criminal sanctions, but they were pressured into submission. When they tried to lay down their work in protest against repressive measures, they were threatened with criminal proceedings with a possible death penalty.

Another form of resistance is to reduce the effect of the restrictive measures by interpreting them narrowly and in light of established rules and principles of law that protect the individual. Marc Osiel describes how the Argentine Supreme Court, in many cases, interpreted the scope of emergency measures narrowly so as to allow their reconciliation with a more liberal, preexisting law. Instead of taking the plain facts approach of the South African Appellate Court to give effect to the intentions of the regime, it applied existing laws in a positivist way. Osiel mentions as an illustration the question of extending the length of detention of prisoners without trial beyond the time stipulated in the constitution for emergency measures. The regime argued that it would be illogical to release from custody those held for disrupting the social order on the ground of their success in disrupting the order for a longer time than envisioned by the constitution. The Court rejected such argument.²⁰

The Supreme Court of Brazil consistently engaged in a narrow interpretation of the oppressive measures of the military regime. Initially, it interpreted repressive legislation in light of rights and liberties in the legislation predating the coup. As the regime enacted new legislation with more precise abrogation of earlier law and even changed the constitution, the Court resorted to underlying moral principles implied in the constitution for its narrow interpretations.²¹

An example of a court that approached the measures of the Nazi regime in this way was the Prussian Administrative Appeals Court. The Prussian Administrative Appeals Court in Berlin represents, according to Schorn, a “hall of fame” of German justice during the Nazi regime.²² According to Schorn, it maintained its old traditions through a series of “brave and uncompromising” decisions.

The legal credo of the Prussian Administrative Appeals Court is presented in an article in 1936 by Senatsprezident Dr. Franz Scholz.²³ He affirms that there has been a transition to a “new legal thought” in the case law of the Court but maintains that this transition started before the Nazi takeover of power and dates back to the rulings where the courts departed from the “Mark equals Mark” approach because of the hyperinflation. In these rulings, the courts departed from a strict textual approach to contractual obligations to take account of the diminished value of money due to inflation. The rulings marked the turn away from a formalistic legal reasoning tied to the letter of the law and paved the way for an approach based on substance and justice. Scholz describes the approach of the Prussian Administrative Appeals Court as based on reliance, rule of law, equal treatment, and loyalty to the intentions and aims of the legislator as core values of the community of the German people (Volksgemeinschaft).

Scholz stresses that the Prussian Administrative Appeals Court never put in doubt the fact that older legislation must be applied insofar as it had not explicitly been repealed by the new regime or must be regarded as contrary to “the totality of the new law”. Illustrative of this are several cases where the Gestapo had closed down the businesses of Jews, socialists, and other “unreliables”. The issue in such cases was whether the merchants were protected by the freedom of enterprise in the old legislation. In a consistent line of cases, the Court protected the merchants. In one case, it stated:

It is true that the freedom of enterprise contained in § 1 of the RGO in order to accommodate the interests of the people has been restricted to a large extent by the National Socialist legislator, so that it no longer is the ruling principle of the market place. On the other hand, §§ 1 and 143 have not been repealed… Precisely from the fact that the legislator in order to reach its goals has chosen not to repeal §§ 1 and 143 follows that it is the will of the legislator not to further encroach upon these provisions, and that they, in the lack of specific legislative provisions remain in force.²⁴

The judges accordingly were obliged to apply older legislation, “even when they believe that the older legislation contradicts the National Socialist worldview”. On the other hand, Scholz conceded that the general clauses of the law, such as good faith, essential concern, public order, etc. must be applied according to the National Socialist outlook.

The case law of the Court shows that the description of the practice of the Court given by Scholz was not only casing but actually represented attitudes applied by the Court in its rulings.²⁵ Scholz mentions cases where the Court allowed judicial review of actions taken by the Gestapo to close down opposition newspapers. In a decision of 25 October 1934, the Court drew a distinction between review of the legality of the action, which was admissible, and review of the discretion of the police, which the courts should not undertake. Under the review of the legality, courts should assess whether police action was undertaken in the “prevention of communist acts of violence”, which was the requirement of the relevant legislation. That courts should review the legality of police action followed from established administrative law, which courts were not allowed to deviate from.

It was not clear from the beginning of the Nazi regime that actions of the secret police, the SS, and the concentration camps would be outside the review of the courts. Discussions over this issue prevailed over a period of 3 years between the SS, on one hand, and the ministries of Justice and Interior, on the other, resulting in three different acts, each of them narrowing the scope of judicial review. The ministries kept insisting that also the SS and its branches must be subject to judicial review when operating state functions such as police and concentration camps. The issue was finally settled by Hitler personally, and the third Gestapo Act was enacted on 10 February 1936, stating that all actions and affairs within the jurisdiction of the secret police fell outside the jurisdiction of the administrative courts.²⁶

The Prussian Administrative Appeals Court took a narrow approach to the different acts. The second Gestapo act explicitly excluded acts by the Gestapo itself from legal review. This was reflected in a decision of 2 May 1935, where judicial review was denied by the Court. On the other hand, the Court interpreted this statue narrowly: a case of 23 May 1935 stated that assistance offered by the normal police to the Gestapo was subject to judicial review. When the third law was enacted, the Court had to adapt again. But also this time, the Court gave the statute a narrow interpretation. When reviewing the assistance of the normal police, the Court stated in a decision of 19 March 1936 that it was a matter for the Court to review whether the decision to assist was, in fact, based on matters of the Gestapo and that this was expressed in the decision to assist or followed evidently from the facts. The mere declaration from the police that the action was made to assist the Gestapo would not suffice to exclude judicial review. Scholz’s comment on the legal development was that it lead to the unsatisfactory situation that the courts had no means to protect against arbitrary police actions originating from an office of the Gestapo since this mere formal circumstance was enough to prohibit judicial review. Only for acts originating from the normal police could the courts determine whether the actions in fact were matters of a political nature or not. According to Fraenkel, the 1936 decision represented the abolishment of “the last vestige of the Rule of Law in Germany”.²⁷ It seems that the court had to give in once the SS had defeated the resistance of the two ministries.

Scholz accentuates the importance of judicial protection of the law in administrative measures. He gives an example of a case where the licence for itinerant trade was revoked from a member of the Roma population. The Court stated in its ruling of 30 December 1935 that the licence could not be revoked solely on the ground that Roma, in general, uses such a licence as a cover for theft and fraud. A revocation would have to be based on the individual circumstances of the trader.

In reply to the criticism that the Court in this way adhered to an obsolete theory of subjective rights, Scholz argued that a theory of subjective rights had never been a part of the jurisprudence of the Court and that one must distinguish between the granting of subjective rights and upholding the law. Scholz declares that “That judicial protection at the same time protects the interests of the community and the state is obvious”.²⁸ The Court in several decisions also underlined the importance of due process, access to documents and evidence, and impartiality and argued that this followed from the “fundamental foundations of any legal process”.

At the same time as the Court followed its traditional concern for legality and judicial protection, it emphasised that its jurisprudence was based on the new law and on National Socialist legal thought. In an article from 1938, the vice president of the Court, Dr. Bach, underlined that the Court consciously and purposely aimed its case law at the worldview and legal thought of National Socialism.²⁹