7 Spring 2026 continued to apply. Article 139 imposed a duty to report known crimes, and Article 152 of the Code of Criminal Procedure required state prosecutors to initiate proceedings upon knowledge of an offense. The doctrinal framework prohibiting homicide remained intact.16 The regime relied on secrecy and administrative assurance that participants would not be prosecuted. The legal contradiction was patently obvious: the killings violated existing criminal law. The judiciary was not stripped of jurisdiction; it was expected to acquiesce. Judge Lothar Kreyssig, in Brandenburg, objected to them on these explicit legal grounds. He argued that no statute authorized the killing of institutionalized patients and sought criminal investigation of those responsible.17 Even when shown a signed order by the Führer, Kreyssig refused to accept it and was forced into early retirement.18 His case in particular is exceptionally informative: It shows that if a judge refused to accept the injustices of the system, the worst he had to fear was early retirement … [most significantly] [n]o matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.19 Kreyssig may have been the only judge who defied the Nazi regime, but two prosecutors are also worthy of mention. Josef Hartinger, a public prosecutor in Bavaria, had investigated suspicious deaths at Dachau in 1933. After reviewing forensic evidence, he concluded that inmates had been unlawfully killed and prepared indictments against SS officials, which were suppressed.20 Martin Gauger was a prosecutor who refused to take the oath to Hitler and ultimately died in custody in 1941.21 His refusal to cooperate with policies he deemed unlawful underscored a central point: professional obligation did not eliminate moral agency. These few figures did not stop the regime’s trajectory. They are significant because they refute the claim that legal compliance was inevitable. The tools necessary to contest unlawful killing were present. What was required was willingness. Yet virtually all judges and prosecutors did not protest. Many rationalized inaction as prudence or loyalty. The end result was that murder proceeded without legal resistance.22 This exposes the jurisprudential fault line at the heart of the Nazi judiciary. When executive command conflicted with statutory prohibition, the legal actor faced a choice: reinterpret the law to accommodate power or insist that the law binds power. Kreyssig, Hartinger, and Gauger chose the latter and paid a price. Their stories do not redeem the judiciary but clarify the indictment. C. The Spectacle of Ideological Justice As political repression intensified, the regime expanded a parallel judicial architecture designed not merely to punish dissent but to dramatize ideological conformity. Among the most notorious of these institutions was the People’s Court (Volksgerichtshof), established in 1934, later presided over by the notorious Roland Freisler. Defendants appeared before a bench, indictments were read, and judgments were pronounced in the language of law. Unlike regular courts, which retained traces of decorum, the People’s Court functioned as an instrument of political theater.23 16. Henry Friedlander, THE ORIGINS OF NAZI GENOCIDE: FROM EUTHANASIA TO THE FINAL SOLUTION 116-117 (1995). 17. Id. at 119. 18. Id. 19. Supra note 14, at 195-196. 20. Timothy W. Ryback, HITLER’S FIRST VICTIMS: THE QUEST FOR JUSTICE 8-9 (2014). 21. See “The Courage to Say ‘No’: Martin Gauger and the Oath to Hitler” (2020), available at https://ndaajustice.medium. com/the-courage-to-say-no-martin-gauger-and-the-oath-to-hitler-9dfb430d377 22. Supra note 14, at 196-197. 23. Supra note 14, at 141 (“[Roland] Freisler observed that ‘such a high court, political in the noble sense of the word in that it guards the security of the nation,’ should be ‘a permanent achievement of National Socialist leadership,’ and he demanded that ‘the court [be] organized and expanded so its outward appearance matches its role.’”).
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