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Nuremberg Trials

Tarun Donadi

The Nuremberg trials give us a clear idea how the two schools of thoughts were administered
by the advocates of both the sides to put forth their arguments. While the prosecution stuck to
the Natural law, the defence took up Legal positivism to defend the allegedly gruesome acts
committed by the defendants.

Natural Law (Due process of Law)

Natural law takes into consideration morality and justice and believes that a law is not a law
if it is not moral and just. According St. Thomas Aquinas, “Natural Law” is the eternal law
and is superior to the human made law which only provides working details that the Natural
law has left indeterminate. Therefore man made law to be considered as just must be in
accordance with the principles of the Natural law. “Now in human affairs a thing is said to be
just, from being right, according to the rule of reason. But the first rule of reason is the law of
nature…consequently every human law has just so much of the nature of law, as it is derived
from the law of nature. But if in any point it deflects from the law of nature, it is no longer a
law but a perversion of law.”
In the Nuremberg trial, the prosecution utilised Natural law to convince the tribunal that the
act done by the defendants, although at that time, under the law of the third Reich was not
illegal, was immoral and unjust. It is the universal truth that killing someone is immoral,
regardless of what the law of the particular state has to say about it. The prosecution tried to
appeal to the emotions of the tribunal and showed how the discriminating laws of the Third
Reich resulted in the death of a huge number of people. The prosecution’s Justice Robert
Jackson, in his opening statement, asks, “Does it take these men by surprise that murder is
treated as a crime?” The prosecution brought to the notice of the court, the Feldenstein case,
where an innocent old Jew man was sentenced to execution for racial pollution. The
prosecution had also shown a horrific video of how the German men who tried to resist the
Third Reich were secretly taken to concentration camps where the motto was to “Break the
body. Break the spirit. Break the heart”. The people in the camps were used as guinea pigs
for testing various inventions made by the German government and numerous children were
also exterminated. The prosecution also brought in a victim of the sterilization laws adopted
by the third Reich who had made an emotional testimony about the way the court had
sentenced him to be sterilized. All of these had an impact on Judge Haywood of the tribunal,
who sentenced the defendants to life imprisonment for committing immoral, unjust and
wrongful acts.

Legal Positivism (Procedure established by Law)

Under legal positivism, the written law alone is strictly adhered to and the concept of law and
morality must be kept separate from each other. According to Austin’s command theory, “To
say that human laws which conflict with the Divine law are not binding, that is to say, are not
law, is to talk stark nonsense”. The theory says that law need not necessarily be linked to
morality. This was utilised by the defence in the Nuremberg trials as the defendants had only
been loyal citizens of Germany while adhering to the law and committing the acts that they
have been accused to have committed. The legal profession of Germany had submitted to the
laws made by the third Reich not only because of fear for their lives but also because of the
idea that one’s own conscience and discretion should neither feature in the understanding of
law nor affect its outcome. The defendants had accepted the laws of the National Socialist as
they believed that it would lead to the overall betterment of the people of the country. The
laws of Germany had been clearly established with proper procedure for enforcing them. The
Eugenic laws were passed in Germany to prevent defectives from reproducing and for
survival of health Aryan population. A proper procedure and an appellate board was also laid
down to test the mental competency of the person before sterilization and according to the
defence, Germany wasn’t the first country to implement laws like this as the State of
Virginia, in the case of Buck v. Bell, had ordered for the sterilization of a man saying “four
generation of imbeciles is enough”. Hence, the defendants had merely followed the law
which according to Austin is nothing but the “command of the sovereign”, while committing
the acts that they’ve been accused for. The racial pollution laws were also clearly laid down.
The motto of Adolf Hitler, as mentioned by Ernst Janning during his trial was that if the
Germans were to prosper, they can do so only at the cost of the Jews and others who were
discriminated against. The discriminating laws that were enacted in Nuremberg were hence
consistent with the command of the sovereign and had to be strictly adhered to by the people
of the country although it may be immoral, as morality and law must be kept aside.
Ex post facto laws:

The main question that arose during the time of the Nuremberg trials was if the cases were
invalid due to ex post facto laws. The defendants at the time of committing the act had been
acting under the law that existed at that time. They had done a lawful act and what they were
supposed to do. According to the legal positivists, the defendants had no idea that a lawful
act that they had done would be considered as a crime in the future. They would not have
anticipated this. According to the advocates of natural law, killing a person is universally
accepted to be immoral and a crime. The law that orders for the murder of the people must in
itself be considered as not a law as it is immoral and unjust.

Rule of Law:

The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the
principle of legality) which refers to a government based on principles of law and not of men.
Under rule of law, law is supreme and is above every individual. No individual whether if he
is rich, poor, rulers or ruled etc. are above law and they should obey it. The rule of law
implies that government authority may only be exercised in accordance with the written laws,
which were adopted through an established procedure. The principle of Rule of Law is
intended to be a safeguard against arbitrary actions of the government authorities. Rule of
law means “due process of law” and not “procedure established by law”. In Nuremberg
Trials, Rule of Law saw its demise as there was only strict adherence to the procedure and
disregarded “Due Process”.