“What is truth?” a ruler once asked a man facing the death penalty. Pilate sensed he was beyond his understanding because of this disturbing fact: the man before him was obviously not motivated by the same fears and desires as other men. But this troubling man was not beyond Pilate’s ability to judge as without fault. Certainly this man was not worthy of the punishment his accusers sought.
We find ourselves in much the same situation, although today the pertinent question is, “What is justice?” Perhaps Germany can look to the east to understand the issues involved. Here are words from a November 6, 2014, conference at the “Sauna” room in the former concentration camp at Auschwitz-Birkenau.
To an audience composed of Polish prosecutors, judges and other representatives of justice, the following distinguished representatives of Polish justice spoke of what happens when law is regarded as “value free”:
- Andrzej Rzepliński, President of the Constitutional Tribunal
- Marek Zirk-Sadowski, Vice-president of the Supreme Administrative Court
- Irena Lipowicz, Ombudsman
- Andrzej Seremet, Attorney General
- Piotr M.A. Cywiński, Director of the Auschwitz-Birkenau State Museum
The quality of judgment
Marek Zirk-Sadowski, Vice-president of the Supreme Administrative Court, stressed that the law consist in judging of man by man. “The quality of a judgment depends upon the quality of a person. Justice is a property with a moral aspect. This aspect cannot be only procedural or formal. This needs to be taken into account when issuing a ruling”, he claimed.
“Closing ourselves in legalism and failing to see a need to construct our sentences and rulings also on the principle of proportionality1 as well as failing to recognise the foundation of human rights, all lead to aberrations in even very good legal systems. It is very easy to be drawn into the mechanisms of inhuman law due to misinterpretation and failing to recognise certain values which need to be introduced to the legal system to avoid paying the price that the Germans paid having forgotten about this dimension of law”, he said.
Can law be value free?
Just what are “values”? According to the Cambridge Dictionaries Online, values are “the principles that help you to decide what is right and wrong, and how to act in various situations.” In other words, these Polish legal scholars maintain that law cannot be separated from morality.
Where does morality stand in regards to the written, positive laws of a land like Germany? Does it stand over it or bow down before it? Officially, if one reasonably considers the Basic Law, as a normal human being and not as a scheming lawyer, morality is the very basis of law. Again, officially, there is, in the famous speech of the (then) President of the German Federal Supreme Court of Justice, Prof. Dr. Günter Hirsch, the unequivocal statement that “there is a higher law than the written law.”
Is morality the basis of law?
We ourselves, the members of the Twelve Tribes communities of Germany, would not know this to be true. Not from our experience at the hands of the authorities, neither we nor our children would know this to be true. We would not know that morality—what is written on the heart of man regarding good and evil—is the basis of law in Germany. We would not know there is a higher law than the written law. We would not know that the legal philosopher Gustav Radbruch, to whom President Hirsch proudly referred, ever even existed.
He, Radbruch, maintained that an appeal to obey God rather than man, was a valid legal proposition. That is to say, a plea worthy of honor by judges who can discern right from wrong. We sincerely hope there are such still in this country. In his fifth minute of legal philosophy, he wrote in 1945:
“In the language of faith, the same thoughts are recorded in two verses from the Bible. It is written that you are to be obedient to the authorities who have power over you (Hebrews 13:7), but it is also written that you are to obey God rather than men (Acts 5:29)—and this is not simply a pious wish, but a valid legal proposition. A solution to the tension between these two directives cannot be found by appealing to a third—say, to the dictum: ‘Render to Caesar the things that are Caesar’s, and to God the things that are God’s’. (Mark 12:17) For this directive, too, leaves the dividing line in doubt. Or, rather, it leaves the solution to the voice of God, which speaks to the conscience of the individual only in the particular case.”
Did the God who made us–yes, the very one ostensibly worshipped in thousands of churches around Germany–make us to obey or disobey Him? Is it possible to outlaw what both conscience and the Word of God teaches parents about how to raise their children? Could such a law actually have the force of law? Or is it one of the laws of Germany today “so unjust and so socially harmful that validity, indeed legal character itself, must be denied them,” as Gustav Radbruch said?
Such a law comes in fundamental conflict with the law higher than the written law according to Radbruch: “There are principles of law, therefore, that are weightier than any legal enactment, so that a law in conflict with them is devoid of validity. These principles are known as natural law or the law of reason.”
In the conflict one must stand and one must fall. One must be acknowledged as weightier or one must be accorded validity. If the higher and weightier law falls then it is another step to the abolition of morality. What happens when wrong and right get confused? Do we have any examples from history to enlighten us?
The law can turn wrong into right
A final, sobering reminder of what was done very legally several generations ago. Legally, morally—is there a difference? Only those who can judge by the fruit will ever be able to tell. If you cannot tell by the good fruit of our children that our educational method is good, then you too, like so many Germans yesterday, today, and it seems tomorrow, will not be able to tell the difference between what is legal and what is moral.
Attorney General Andrzej Seremet made a reference to the place (Auschwitz-Birkenau) where the debate was taking place: “This death machine, in the heart of which we are now, was to a considerable extent initiated by lawyers. If it had not been for the lawyers, there would not be those infamous Nuremberg laws nor the administrative organisation of Germany. We, as lawyers in general, should be forced to deeper reflection also on that aspect”, he said.
That is to say that everything that happened in what the world now calls the Holocaust was perfectly legal under the positive laws of Germany.2
That it is now regarded as perfectly immoral misses the point altogether. To the mind that refuses to judge a tree by its fruit there is no difference, nor ever shall be, between what is legal and what is moral.
A society made up of individuals like this has no problem having laws without values. What such a society is capable of doing is beyond one’s lowest imaginations.
- This is something we have pleaded for and reminded the courts of many times, so far to no avail. ↩
- As Professor Thomas Schirrmacher recently said: “The fact that the laws of a nation make something lawful doesn’t make it right,” he said. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.”
That is to say, it was immoral, as anyone with a functioning conscience could tell then, let alone now. ↩