. NMT03-T0156
Volume III · Page 156
prove the practical application based on files. Thus, the question of the judge's subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge's actual position in this legal system. Therefore, it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug's method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the prosecution, and which lie in the direction of the prosecution's main thrust. No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus, he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptuous if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich courts, and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.
In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug's circle during the course of 6 years.
The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the Proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too, to clear up the linguistically unfortunate term of "psychological producing of evidence" which has found its way into this trial. Thus, the legal and psychological task of the pre- […siding]
