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Volume III · Page 155
a simultaneously existing intellectual alliance in the sense of a conspiracy, but that a connection of this power position, in full knowledge of its legal nature, with a simultaneous assumption of a conspiracy would mean a contradiction in itself. Here it becomes necessary to prove that the activity of a judge at the Special Court or a Reich public prosecutor is limited to the application of the law which is based on the official Reich legislation in the field of criminal law. I shall demonstrate that this Reich legislation in all its harshness has, in its purpose, neither lost nor limited its character of purely criminal law and that, on this point, it has not been misinterpreted as clearly proved by the literature on the subject and the jurisdiction by the supreme judicial authorities and others.
Here must be proved a fact evident in itself, namely that judges and prosecutors in the same position as Rothaug were never and in no context expected to have objects alien to the field of criminal law in carrying out their official duties.
Records of sentences already submitted and others still to be submitted will prove that this had in no way been intended.
This touches on the legal question, whether official functions resting on the official Reich legislation which, up to this very moment, is covered in international law by the principle of nationality and sovereignty, functions which were carried out in public, may be conceived as actions of persecution on racial, religious, or political grounds and may be treated as being on the same level as actions which were carried out secretly and without control, and which could be recognized as wrong already by their cruelty and severity by every person concerned as offending against justice and law.
Here, I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to Persons who held positions like the defendant Rothaug.
In the concrete reflection on the relationship to the law of the Position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power In an authoritarian state, thus to the governing power.
Here we cannot omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to
