4 No. 77 JUSTICE I. Introduction The Holocaust – the systematic murder of six million Jews across Europe – was not carried out in a legal vacuum. It did not require the abolition of courts, the suspension of statutes, or the collapse of administrative order. Judges remained on the bench. Prosecutors filed indictments. Opinions were issued in the name of the state and legal procedures were observed. The state machinery of genocide did not replace law or morality; it appropriated it.1 Nazi policy was codified, interpreted, and enforced by trained jurists who regarded themselves as operating within a valid legal system. Statutes were promulgated in the Reichsgesetzblatt. Administrative decrees bore official signatures. Criminal sentences were imposed after hearings. The forms of legality endured as ethical commitments disintegrated. Given how central law was to the Nazi genocide of European Jewry, legal and judicial professionals face an unsettling reality: law can operate as a key mechanism of atrocity not despite its formal coherence, but through it.2 This accordingly raises a foundational jurisprudential question: what distinguishes the rule of law from the mere existence of law? All societies have created and maintained legal systems, but not all legal systems restrain power. Where law is detached from justice, it may function not as a constraint on authority, but as its instrument. The experience of Nazi Germany forces a reconsideration of the role of judges – and more broadly, lawyers – within such systems. The 1947 Judges Trial at Nuremberg – United States v. Josef Altstötter et al. – confronted this paradox directly.3 For the first time in an international tribunal, judges and legal officials were prosecuted not for battlefield atrocities but for administering a regime of discrimination, persecution, and eventual extermination. In his opening statement, Chief of Counsel Telford Taylor described the legal proceedings as unusual because the defendants’ actions were “crimes committed in the name of the law.”4 The collapse of German judicial integrity between 1933 and 1945 demonstrates how law could be transformed into an instrument of oppression while preserving its forms. The gravest danger to the rule of law is its hollowing out – when courts continue to operate, statutes remain formally valid, and Crimes in the Name of the Law: Judges and the Legal Machinery of the Holocaust Isaac Amon 1. Claudia Koonz, THE NAZI CONSCIENCE 273 (2003) (“The Final Solution did not develop as evil incarnate but rather as the dark side of ethnic righteousness. Conscience … in the Third Reich became a means of underwriting the attack by the strong against the weak … Nazism offered all ethnic Germans, whether or not they joined the party, a comprehensive system of meaning that was transmitted through powerful symbols and renewed in communal celebrations. It told them how to differentiate between friend and enemy, true believer and heretic, non-Jew and Jew. In offering the faithful a vision of sanctified life in the Volk, it resembled a religion … But in contrast to the optimistic language of international covenants guaranteeing universal rights to all people, Nazi public culture was constructed on the mantra: ‘Not every being with a human face is human.’”). 2. David Fraser, LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE OF THE HOLOCAUST (2005). 3. United States v. Altstötter (The Justice Case), 3 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (1951). 4. Telford Taylor, Opening Statement, supra note 3, at 31.
RkJQdWJsaXNoZXIy MjgzNzA=