This article is written by Shreeja Athota.

Watching the 1961 legal drama, Judgement at Nuremberg, could shake up one’s entire belief system of the nature of the law. One could easily wonder whether the Judges actually wrong? Weren’t they just fulfilling their respective roles? The role of the judge is to interpret the law. But, then the answer to these questions still stands tall, they could have prevented it. Yet, they did not.

At Nuremberg, after the end of the second world war, the people within the government were tried for their accountability for their ‘crimes against humanity’ in the second world war. This post war period laid down the context for the Universal Declaration of Human Rights after the atrocities committed during the War. These historical trials were also important as they laid down the historical contexts for the future war trials in a fair manner. Although, there were a series of 13 trials were conducted at Nuremberg from 1945 to 1949; the 1961 movie, ‘Judgement at Nuremberg’ focuses only on the Judges trial and the philosophical debate of law and morality which lies within. The focus on the Judges trial, is particularly very interesting as it gives a sense of law judging other laws (i. e. A tribunal of judges, judging other judges and The law, questioning positivist law).

The film opens in Nuremberg, Germany at the aftermath of the second world war. It centers on Judge Dan Haywood, who was a part of the military tribunal convened in, Nuremberg by the United States, in which German-Nazi judges and prosecutors stand accused of committing crimes against humanity through their active involvement in the atrocities committed by the Nazi-regime. The movie is highly politically charged with the growing pressure of the cold war with the Soviet and the consideration for the ideals of justice in addition to the prevalent geopolitics. This further gets apparent into the course of the trial.Click Here

The sense of political charge is prevalent from the very beginning of the trial when the tribunal consisting of three American judges starts with the phrase “God bless the United States and this Honorable Tribunal”. Although, in the real life Nuremberg trials, the tribunal consisted of a bench of International judges and not American ones, this fictional american bench might represent the victors of the war yielding a higher power than Germany, who had lost the war, especially with USA taking over the part of Germany where Nuremberg was situated. Furthermore, the use of an American Tribunal as a judge to the ‘Crimes against Humanity’ that the laws of Nuremberg allowed the use of a reflective lens in the trial of the Sterilization law which was based on the American model developed by Harry H. Laughlin.

In the movie, one of the first arguments against the Judges was on their interpretation and sentencing for sterilization as per the Law for the Prevention of Genetically Diseased Offspring, 1933 (Gesetz zur Verhütung erbkranken Nachwuchses), which allowed for the compulsory sterilization of any citizen who is deemed by the Genetic Health Court to be suffering from the scheduled list of genetic disorders. In this case the defense counsel merely stated that the judges merely applied the given law. And the law was based on its american counterpart, where the law was moral enough. He goes on to state the victim was sterilized after failing the given tests which determine fitness to pass on his genes.  Furthermore to substantiate this point, the famous American jurist Oliver Wendell Holmes was quoted on his decision in the Buck v. Bell case.

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind………Three generations of imbeciles are enough.”

The use of ‘Eugenics’ as the first argument against the Judges, is a masterstroke by the filmmaker as he effectively directs the focus of the audience from the trial of Nazi judges to the trial of law. Although, in the beginning of the movie, there was a subtext to suggest the German law was rotten to the core and it was up to the allied forces to reinforce law and order, the Eugenics case directs the focus to law and morality. This effectively raises the question whether the Judges of Nazi – Germany were guilty of ordering compulsory sterilization when their allied counterparts were guilty of the same. Although this question is not answered through the course of the movie, it is important to know that the case of Buck v. Bell and the above mentioned statements by Oliver Wendell Holmes was never overturned till date.

This is further highlighted towards the end of the movie on Hans Rolfe’s speech on the World’s guilt on the raise of dictatorship. All throughout the course of the movie, one could not help but vehemently agree to Rolfe, the defense counsel in almost all his arguments, except perhaps in the crimes were horrific indeed, but were they immoral. Throughout the final statements of the defendant judges (except Ernst Janning), all of them believed they just did their role in interpreting the law. In the statement of Judge Hofstadter ‘I believe in the concept that says to sacrifice one’s 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’ sends chills to ones’s spine. It is true. And that is exactly what we follow in the present day judiciary. The question is of the violation of the law and not of justice. But would the Nazi-Germany laws be laws?

As per the school of Legal Positivism, law is what it is and not what it ought to be. According to John Austin, Law is the command of the society,  and as per this definition of Law, the nazi-laws should be laws, as they were legitimate and sanctioned by the sovereign (the Third Reich).  But, will they be considered as laws, despite their inherent immorality. This question was discussed in a detailed manner in the Hart-fuller debate. The debate mostly centered on the decision of the post war, west Germany case of the Nazi Wife, where the wife a German, wanting to get rid of her husband reported him to the Gespato for the insulting remarks he made of Hitler’s conduct in war, as per the Nazi Statute of 1934, despite her defense that her husband had violated the statute the court convicted her in 1949 for the ‘offending the sound consciousness and the sense of justice of all decent human beings’.  Hart, disagreeing with the decision of the case argued that the Nazi statue was valid law on the ‘rule of recognition’ whereas, fuller contended that the Nazi laws deviated so far from morality that they cannot be considered, qualified to be laws at all, as they deviated so much from morality. Fuller agreed that law has an inherent ‘internal morality’ which makes the legal system ‘a purposive legal enterprise of subjecting human conduct to the guidance and control of general rules’, and in whose absence the law would be reduced to merely an exercise of state coercion.

In the course of the movie it is inherent that the acts committed by the Third Reich were immoral. There were against the principles of fairness and justice. However, the concept of positivism would still stand. Legal Positivism strives to identify the law as it is and not what they ought to be. It cannot be said that laws cannot be immoral but that immorality cannot disqualify them from being valid laws. This is in accordance with Hart’s position  that a legal system might show some conformity with justice or morality but does that does not follow that a rule of recognition a criterion of legal validity ought to include morality in it.

There is no doubt that towards the end of the second world war, there was a huge outrage over the inhumane violence of the holocaust and the second world war, which led to the formation of the United Nations Organization and the call of the International Convention of Human Rights. There was no doubt that there was a revival of the natural law principles as an aftermath of the Holocaust which lasted for two decades. There was a huge cry for the inclusion of morality into the law. But, what is morality? Was this religious morality? What about the bombings of Hiroshima and Nagasaki by the American forces? Whatever this morality was, it was highly subjective to the changing times. If the sterilization law was considered to be immoral, then so were the other countries, who practiced this law are to be guilty of this immorality, just as Hans Rolfe pointed out in his speech on the ‘World’s guilt’ on the raise of Hitler.

One would contend that the present modern day ‘laws’ such as the Armed Forces (Special Powers) Acts (AFSPA) in Kashmir and Nagaland valid laws. And would the section 377 be a valid law before the recent judgement? — The Answer is ‘Yes, they would be’. They will all be valid laws, despite not being internally moral. As per Rawls ‘Justice is fairness’, so how is justice imposed when we still follow the utilitarian principle of ‘Greater Good’ permitting the rights of the minorities to be suppressed for the selfish benefit of the majority? This is not a question limited to the Nazi Germany, it extends to the present day as well. The recent case of the Delhi Police stopping the protesting farmers from entering Delhi to maintain the peace and order within the city is one of the examples of the suppression of rights for the exercise of the greater good.

In the movie, Ernst Janning, during the Irene Hoffman’s cross examination finally breaks out of his silence and eventually states that he believes himself to be guilty, as he overlooked the atrocities of the Third Reich for the love of his country. He believed that it was okay to suppress the rights of a few for the benefit of the majority so that Germany may reach its zenith, and it did. But as Ernst Janning states that he honestly did not think it would come to this. This made one wonder, when did it one to this? When did the definition of law and justice change?  Maybe it did and maybe it did not. The Germans most certainly did not believe so. Through the proceedings of the trial, the movie also captures the post war German society as it salvages the situation and rebuilds itself. One of the major themes in the film, dealt with understanding the germans and why did they comply with the Nazi-regime. One of the most important aspects of the movie is the ignorance of the Germans of the atrocities committed in the concentration camps. It is interesting to note the majority of the German society at large does not hold the officials of the government guilty of the crimes of the holocaust. For, they were just doing their jobs. Now, this raises another question of whether the officials can indeed be held guilty in retrospect of upholding of what they believe in law is.  This is another grey area as the trial itself is on the accountability of these officials.

Perhaps this is exactly where the philosophical debate of what law is and what law ought to be come into play. For one, legal positivism effectively explains that this is the law, but this would not be the society that one would want to live in. As the film devolves around the philosophical jurisprudence debate on Law versus morality, it makes one consider and reconsider one’s own ideologies throughout the course of the movie. What is law? Is it a set of rules for the ideal society or merely a mechanism for controlling the people?

Justice Dan Haywood answers these questions towards the end of the movie through his verdict:-

“…If he and the other defendants were all depraved perverts if the leaders of the Third Reich were sadistic monsters and maniacs these events would have no more moral significance than an earthquake or other natural catastrophes. But this trial has shown that under the stress of a national crisis, men  even able and extraordinary men  can delude themselves into the commission of crimes and atrocities so vast and heinous as to stagger the imagination………Survival as what? A country isn’t a rock. And it isn’t an extension of one’s self. It’s what it stands for, when standing for something is the most difficult! Before the people of the world  let it now be noted in our decision here that this is what we stand for: justice, truth… and the value of a single human being!”

Although it is not a clear-cut answer, at least in this case, morality prevails. This statement lays down the importance of individual accountability for every single human life.

This fictional Judgement despite being for the Nazi-regime is very much relevant even today when we see the world sliding again towards the suppression of the minorities for the benefit of the majority as seen in the Indian context during the various riots across the country and in the Western context (i.e. The Current Republic party in USA, Brexit, Euro Crisis, etc.,) with the raise of the right wing. Perhaps the best way to explain Law what law is, is with legal positivism whereas, the explanation of what law ought to be is cannot be separated from the morality of the natural law principles.

REFERENCES

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