International Aspects of German Racial Policies

By Oscar I. Janowsky; Melvin M. Fagen | Go to book overview

Chapter III
APPLICATION OF RACIAL LAW BY THE COURTS

THE Courts of Germany have not only failed to safeguard the rights of equality and liberty which have become the basis of all civilized legal systems, they have even been transformed into instruments for the extension and application of the racial principle to matters unregulated by formal legislation or unreached by administrative decree.1

This development of their function has been made possible through the avowed abolition by the National Socialist régime of the three corner-stones of judicial morality: equality of all men before the law; independence of judges; and the doctrine that only those acts are to come under the prohibitions of the law for which the law specifically provides (the maxim, in criminal law, nullum crimen nulla poena sine lege). These fundamental guarantees of civilized justice 2 have been rejected as non-German, 3 "non-Aryan," 4 and as Judeo‐ Roman 5 in origin.

Therefore, in order to co-ordinate the administration of National Socialist law with the basic philosophy of the régime, equality before the law has been replaced by the doctrine of racial inequality; the independence of the judiciary has given way before the Führerprinzip that judges are agents of the Party and that tenure of office is dependent upon their administration of the political and moral standards of the Party, rather than upon the application of abstract justice; and the principle forbidding arbitrary judicial decisions has been abolished in favour of unlimited latitude given the Courts to adjudicate and penalize whether or not a law or a right has been violated.

-i9i-

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