• 真的假不了|戴啟思

  • 發布日期:2020-12-19 11:00
  • 真的假不了|戴啟思


A Lawyer who was true to his Conscience-Martin Gauger

A Lawyer who was true to his Conscience-Martin Gauger

Although cynics would say otherwise, lawyers have a conscience. It would be impossible to discharge fiduciary duties and maintain professional confidences without one.

For some lawyers, conscience may not stretch much beyond honouring their professional responsibilities, but it is there. Conscience plays a big part in ensuring that the practice of law is an honourable profession and not just a business.

It is a rare thing for a lawyer to have his or her conscience tested publicly outside of professional practice. However, in 1933, the consciences of thousands of German judges and lawyers were tested by an oath which they were obliged to take when the nature of the Government changed radically.

Before 1933, the German State operated under the Weimar Constitution of 1919. This constitution came into being after the German monarch, Kaiser Wilhelm II, abdicated at the end of World War I. It was a progressive document which incorporated democratic values, and it sought to protect some fundamental rights and freedoms.

The State required members of the armed forces and civil servants to swear an oath under the Weimar Constitution. The words of the oath would bind the person making it to be faithful to the constitution.

The simple formulation of the oath allowed the oath-taker to interpret the values in the Weimar Constitution in the private space of conscience. What one person understood by, say, the right to freedom of speech might differ from his or her colleagues, but no one would know that there was a difference because there was no requirement to explain.

Adolf Hitler came to power in January 1933 by making skilled use of the democratic machinery under the Weimar Constitution. However, he despised democracy and the liberal values that the constitution incorporated. A convenient fire burned down the German Parliament-the Reichstag- at the end of February. Hitler blamed Communist terrorists and declared a state of emergency that suspended the fundamental rights in the Weimar Constitution indefinitely.

Hitler then persuaded the majority of Reichstag members to enact a law that allowed the Government to make laws without the consent of Parliament, even if they were inconsistent with the Weimar Constitution. Although it was never formally repealed, the 1919 constitution was a dead letter from that time onwards. The source of all authority and all laws and, ultimately, the interpretation of all laws, was Adolf Hitler.

In August 1934, before it was clear that there was no longer any meaningful separation of powers and that all power resided in one man, the Nazi Government revised the oaths taken by civil servants and members of the armed forces. Instead of swearing allegiance to the Weimar Constitution, you pledged loyalty to the incarnation of all political power, Adolf Hitler as ‘Führer’ or ‘Leader’.

The new oath for civil servants was: “I swear I will be true and obedient to the Führer of the German Reich and people, Adolf Hitler, observe the law and conscientiously fulfil the duties of my office, so help me God.”

Just one lawyer out of the several thousand employed by the Government as judges, prosecutors and legal advisers refused to take the new oath. He was a twenty-nine-year-old prosecutor called Martin Gauger.

His objection to the new oath was a simple one. He could not swear allegiance to a man as the embodiment of all legal authority in the State.

Adhering to legal values incorporated in a constitutional document and subject to independent judicial interpretation was one thing. Hitching your conscience to the unconstrained political will of an individual in a position of supreme power was an altogether different matter.

Hitler let you know what he thought of the right to freedom of expression when he organized a bonfire of ‘un-German’ books in a literary purge in May 1933. If you swore the new oath, you were endorsing the antithesis of the right to freedom of expression.

Gauger expected retribution for refusing to be sworn but, to his surprise, nothing happened. He simply lost his civil service post.

After a spell of unemployment, he devoted himself to assisting a confederation of evangelical Christian clergymen that opposed Nazi interference in Church matters. He later associated with a circle of German political dissidents some of whom would, in 1944, attempt to kill Hitler.

In May 1940, when the Second World War was just getting underway, Gauger fled to neutral Holland but was arrested there when German forces overran that country a few days after his arrival there. He was arrested and sent to Germany and placed in ‘protective custody’ which meant sending him to a concentration camp. In July 1941, medical staff murdered Gauger at a euthanasia facility designed for killing sick and weakened prisoners who were no longer of any value to the State.

Many other judges and lawyers who swore the new oath knew it was problematic, but they had not Gauger’s courage to refuse it. They had a conscience, but they permitted it to be eclipsed and then worn down by a raft of more and more unjust laws which they had to apply, but they knew them to be immoral. These men and women did not sleep well at night.

Some lawyers cast aside conscience entirely. They bought into what was called the “Führerprinzip” or “Leader Principle” which was the idea that the Führer’s will was above all written laws so that it was sometimes necessary to adapt the written law to the will of the Führer to make it conform.

One case shows how dangerous it can be if a lawyer leaves his or her conscience behind when going into the courtroom. Leo Katzenberger was an elderly Jewish businessman who had rented a room in an apartment adjacent to his house in 1932 to a Gentile woman, Irene Seller. Seller was a married woman, and she lived in the apartment with her husband.

In 1941 an anonymous informant claimed that contrary to a law that aimed to keep the German race ‘pure’, Katzenberger had sexual relations with Seller. When the police investigated Katzenberger denied the charge, as did Seller. An investigating judge said there was no evidence to charge them and recommended dropping the case.

The case came to the attention of an enthusiastic Nazi party member and judge, Oswald Rothaug. He arranged for Seller and Katzenberger to be tried. Although the evidence showed that both defendants were close friends and visited each other’s rooms regularly, there was no direct evidence of sexual relations, and both maintained their denials of the race offence. Rothaug refused to let the husband testify that his wife and Katzenberger were, as far as he knew, only friends.

Rothaug inferred guilt from this flimsy evidence and sentenced Sellers to 2 years hard labour for lying about her relationship with Katzenberger.

Rothaug sentenced Katzenberger to death, even though the law only permitted a court to sentence a convicted defendant to imprisonment for the offence of racial defilement. Katzenberger was guillotined in Munich on 2 June 1942.

Rothug was able to achieve this result by twisting another law which allowed the death penalty if the crime was prejudicial to wartime morale.

Rothaug’s perverted judicial logic was this: some of Katzenberger’s visits took place at night when there was a blackout as a precaution against bombing. In making night-time visits, Katzenberger exploited a wartime emergency measure. Katzenberger might not have done this otherwise because, in peacetime, anyone could see him under street-lighting! This underhand way of going about his adulterous visits was ‘an attack on the security of the national community during an emergency’.

Rothaug was in thrall to the ‘Führerprinzip’. The written law did not do justice to a Jewish defiler of German womanhood. It needed stretching and the facts made to fit another offence which allowed the Jew to be annihilated, which was what the Führer would have wanted.

A military tribunal tried Rothaug at Nuremberg after the war, and the Katzenberger case was the chief foundation of the charge of committing a crime against humanity. Rothaug was found guilty and sentenced to life imprisonment.

The 1961 Hollywood film, Judgement at Nuremberg, dramatized Rothaug’s trial. It is a fine film, but it needs to be balanced by a dramatic treatment of the life and death of the lawyer with a conscience, Martin Gauger.


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