Oldal 87 [87]
OCR
sense. By building on these, it was possible to oppose even such monstrous legal experts as Ronald Freisler (German legal scholar, first lawyer, then Secretary of State for Justice, then President of the People’s Court between 1942 and 1945, an ardent supporter of laws for the oppression of ethnic minorities or “Rassenschande’”, and who personally imposed more than two and a half thousand death sentences) even if doing so was not permitted by statutory law. Incidentally, this figure passed the judgment in the Scholl brothers’ case, as well as in the trial after Stauffenberg’s failed assassination attempt. Although Freisler did not survive the war (he was killed by a falling beam during the bombings), he is an example of the type of person of whom many, including formerly senior legal officials such as judges, were held accountable for their judicial actions during the Third Reich in 1947. The trial, which lasted ten months, had four charges, the most important of which was the third: “Crimes against humanity” (Verbrechen gegen die Menschlichkeit). Lawyers for the defense have consistently argued that their defendants were, on the one hand, only enforcing the law, that the statutory law they applied were passed in accordance with the rules of the time, and that one judicial official has no right to question, much less overwrite them. Radbruch’s theory does not support this defense, no more than it does the “I was following orders” defense. That is, in such an extreme situation, it is clear that statutory, written law conflicts with unwritten law, which is a set of natural laws based on morality, higher principles, and common sense. It follows, therefore, that the moral norm is more fundamental, or, if you prefer, higher than something we might perceive as a simple system of rules, behind which the sovereign either stands or, occasionally, slumbers. Natural law is a more important basis for justice, especially when there is no statutory legal norm against “legalized illegality” (as exemplified by the trial of judges who strictly adhered to Nazi law), or when a general norm needs to be established (be it by a constitution or for example the Universal Declaration of Human Rights) that does not follow directly from a specific legal norm. In other words, as good
