Judgment at Nuremberg

        Common law jurisdictions differ greatly from civil law jurisdictions.  In a common law jurisdiction there is the doctrine of Stare Decisis.  This means that judge’s previous decisions are followed where judges have interpreted the law that has been made by the state.  Judges can also avoid the doctrine by distinguishing cases on the facts, and therefore do not follow a strict code.  This shows how the role of the judge in a common law jurisdiction is more flexible than in a civil law jurisdiction.  Civil law jurisdictions are not able to even make their own interpretations of the law, they simply follow and apply the code.  Judges in common law jurisdictions tend to look at the law set out to them more broadly, and although they do not legislate, they can adapt principles of the law to apply it to the issues in each individual case.  However, an important question still to be answered is what is the role of the judge?  Patrick Devlin states that “the first – ought one to say the whole? - duty of the English judge is to administer justice according to law”.  A definition of justice is “1. The basic value underlying a system of law, or the objective which that system seeks to attain.  2. The virtue which results in each person receiving his due.”  This shows how one of the roles of the judge is to apply the law so that its purpose that it was put in place for is achieved and also to ensure that due punishment is given.  

        The film “Judgment at Nuremberg” focuses on the case U.S.A v Alstötter et al.  This is when there was a ‘judging of judges’.  The people that had been in positions of judges during the Nazi period were put on trial for crimes against humanity.  They were being tried for the sentences which they had given during Hitler’s reign.  During this film there are many portrayals of the judge’s role and how he should work with and around the law of a country.  In the opening sequence of the film the prosecutor starts by stating how “they distorted, they perverted and they destroyed justice and law in Germany [when] most of all they should have valued justice”.  This brings us back to Devlin’s statement of how a judge’s role is to administer justice.  The prosecutor is stating how the judges went against this role during the Nazi period.  The phrase ‘most of all’ shows just how important providing justice is, to a judge’s role, whether it is in a civil or common law jurisdiction.  Although the entire film looks at the judge’s role and the action of the judge in the Nazi period, the judgment made by Judge Haywood plays the most significant part in analysing the role of the judge.  It is stated how the ‘Nazi judges’ “consciously participated in a nationwide governmental organised system, of cruelty and injustice in violation of every moral and legal principle known to all civilisations.”  The mention of morality here, together with legal principle shows how they are linked together.  It can be argued that a judge also has a moral obligation when applying the law.  This moral concept, which they must consider, is one that all civilisations have.  It is understood worldwide and is needed for true justice.  Closing his judgment, Judge Haywood goes on to state, “Before the people of the world, let it now be noted that here in our decision, this is what we stand for.  Justice, truth, and the value of a single human being.”  This quote spells out the role of the judge.  It states how they have an obligation to supply justice for the people. There are also links with the moral factors of the role of a judge, as it is also looking at the people it is being supplied for and the value of people in the country and this is very much a moral issue.

        The film looks at the reasoning for why the judges acted in the ways in which they did, yet still concludes that no one in their right mind could have come to the judgments that they had come to if they were actually acting in the role of the judge.  It shows how there is a relationship between law and justice, but entwined in this is also the concept of morality.  The closing judgment by Judge Haywood seems to come to the conclusion that justice is only done if it’s morally right for the judge to enforce it, showing that justice is a major part of a judge’s role.  There is talk of all civilisations by Judge Haywood, proving that whether the judge is in a common law jurisdiction, where there is more flexibility, or a civil law jurisdiction, where the judge is simply to apply the civil code to bring justice.  This can only be reasonably done where moral standards allow it to be.  

        During the Nazi reign the judges passed judgments without morals, however, they were still acting within the contemporary legal framework.  The laws made by the Nazis were immoral and beyond what anyone could imagine being right.  An example is shown in the film by two cases, the Peterson case and the Feldenstein case.  The first of these was an amalgamation of cases concerning sterilisation of people such as Jews, Gypsies and those with hereditary diseases and a low mental capacity.  The second case was based the Katzenberger case, which dealt with the relationships between Jews and Germans, where a Jewish man was sentenced to death and a German woman was imprisoned due to the fact that they were friends.  Both of these cases show how the judges at the time had a role which did not concern any morals whatsoever.  After all it is not moral to kill someone for having a friend or to sterilise someone for being a member or a certain religion or race.  

        The film also carries the theme of the use of law as a political tool.  During the Nazi period this was indeed the case.  Germans had to swear an oath stating “I swear that I shall be obedient, to the leader of the German Reich and people, Adolf Hitler.  That I shall be loyal to him, that I will observe the laws and that I will conscientiously fulfil my duties so help me god”.  If they were to protest against this then they were forced to resign.  Hitler used this oath and his power in the courts to carry out his political aims.  As stated by Dr Wieck in the film “After [Hitler] judges became subject to something outside of objective justice.  They became subject to what was necessary for the protection of the country...The result was to hand over the administration of justice into the hands of the dictatorship”.  The role of the judge became to serve the state.  Judges were regarded as civil servants rather than an independent mean for supplying justice.  The role became solely to support the political regime.

        The film also considers the relationship between justice and legal positivism in more detail during the closing statements from the defendants.  One of them, Friedrich Hoffstetter, stated “I followed the concept that I believed to be the highest in my profession, to sacrifice one’s own sense of justice to the authoritative legal order.  To ask only what the law is and not to ask whether or not it is also justice.  As a judge I could do no other.”  This looks at how the judge’s role should be one of following the laws made and nothing else.  As stated by Eli Nathans, “Believing themselves bound to the letter of the law, courts and prosecutor obeyed politically and racially repressive laws without asking moral questions”.  The theory of legal positivism looks at how the legislature is more authoritative and how the laws are simply to be applied.  A judge’s own personal views, including those on justice should be set aside as his role is to apply the law without question.  Hoffstetter’s statement is indeed in line with this theory, and from this it seems to be that the judge’s role is to apply the law and nothing else.  In his work Professor Hart states that “Law, however morally iniquitous, would still be laws”.  This means that the judge would still have to apply the law whether it is moral or immoral, so can it be said that the judge’s role is just to apply the law as it is written?

        To conclude, the film displays many sides to a judge’s role.  In some respect they have a duty to provide justice for the people when giving their judgments.  In many ways this can be said to be the main role of the judge.  The film also concentrates heavily on how judges are to apply the law as it is given to them and how they should not question the legislature in what is written and should simply apply it.  In the closing judgment the film also focuses heavily on the moral aspects of a judge’s role.  Judge Haywood states how the judges were “Men who...actively participated in the enforcement of...laws, illegal even under German law.”  This quote and many others from Judge Haywood show his strong views on morality and the judge’s role.  It can be suggested that this is the main subject of the film.  The Nazi judges had acted immorally because the sentences they gave were in fact wrong and illegal.  “The defendants were being tried for charges that...were not crimes in international law at the time they were committed”.  The film responds to the complexities of a judge’s role by dealing with each aspect individually.  Each time the same conclusion was reached.  This is that judges have a moral obligation to be independent and impartial whichever jurisdiction they have a role in.  The law is to be applied as it is set out, in the different ways that the different jurisdictions give for it to be applied.  However, in line with this the judge must always consider the moral factors and only apply the law if it is in place to provide justice in a moral way.  It has been shown by the film that “moral judgments...are often required in judicial reasoning about rights” and the engagement in moral reasoning is often “an inescapable part of their role”.

        The judge’s role may appear to be different in a civil law jurisdiction than a common law jurisdiction on the outside, but as the film ‘Judgment at Nuremberg’ has shown, they are actually very similar when analysed deeper.  The role of the judge in both jurisdictions is heavily weighted towards morality.  “Moral considerations and...Legal considerations are inevitably tangled together...in all legal reasoning”.  The role of the judge is not a complex one.  The film portrays this well and helps to simplify the issues surrounding the role.  A judge’s role is simply to provide justice to the people and ensure that the law is applied in a way which is moral and correct.  

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